New York State Court of Claims

New York State Court of Claims

STANTON v. THE STATE OF NEW YORK, #2000-013-519, Claim No. 89940


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: LOUIS J. TRIPOLI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 12, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


In this timely filed claim, Florence Stanton, Claimant, alleged that she was injured when she slipped on a broken step in Van Hoesen Hall on the campus of SUNY Cortland. On the date of her injury, September 20, 1993, she was employed as a secretary by The Research Foundation of State University of New York (The Research Foundation) and worked in Van Hoesen Hall.

Defendant denied that it had been negligent and, in addition, asserted that Claimant's cause of action was barred by Sections 11 and 29(6) of the Workers' Compensation Law on the grounds that Claimant was a special employee of the State of New York, or a joint employee of the State of New York and The Research Foundation. Because the affirmative defense is potentially dispositive, I will address it first.

Workers' Compensation is the sole remedy available to an employee against his or her employer for injuries sustained in the course of employment (
Gonzales v Armac Industries, 81 NY2d1, 8; Billy v Consolidated Machine Tool Corp., 51 NY 2d 152, 156; Poppenberg v Reliable Maintenance Corp., 89 AD2d 791; see also, Workers' Compensation Law §11, 29[6]). But, the identity of an injured worker's employer is not always easy to ascertain. When an employer transfers a general employee, the worker becomes the special employee of the transferee and is barred from bringing a negligence action against the transferee employer (see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557; Lane v Fisher Park Lane Co, _____AD2d_____, NYLJ, Dec 4, 2000, at 21, col 3). Whether or not a worker should be considered a special employee is generally a question of fact, but it is presumed that the employee is continuing in the service of the general employer until there is a "clear demonstration" that the general employer surrendered, and the special employer assumed, control of the special employee (Thompson v Grumman Aerospace Corp., supra; Lane v Fisher Park Lane Co., supra; Stone v Bigley Bros., 309 NY 132, 135).
The evidence in this case does not support the conclusion that Claimant was Defendant's special employee. Claimant testified that she worked exclusively for Deborah Miller, the Coordinator of the Migrant Education Outreach Fund, and that she and Ms. Miller were both employed by The Research Foundation, a not-for-profit corporation. During her entire tenure at The Research Foundation, Claimant never worked for or received directions from any State University of New York employee, and did not enjoy any of the fringe benefits of SUNY employment such as pension eligibility or free parking.

Defendant's evidence of Claimant's special employment consisted of nothing more that its cross-examination of Claimant. It established only that SUNY Cortland provided office space, furniture and certain other resources to The Research Foundation and that a SUNY dean participated in the search team that hired Claimant's supervisor. None of this evidence provided "a clear demonstration" that The Research Foundation had surrendered its control over Claimant (
see, Thompson v Grumman Aerospace Corp., 78 NY2d 553, supra).
Nor did the evidence prove that Claimant was a joint employee of The Research Foundation and SUNY. There was no showing that the Migrant Education Opportunity Program was a joint venture between SUNY and The Research Foundation or that SUNY and The Research Foundation exercised joint control over Claimant's employment (
see, Poppenberg v Reliable Maintenance Corp., 89 AD2d 791, supra; Matter of Janikowski v Yardleys of London, 11 AD2d 577). Therefore, I find that the Workers' Compensation law does not bar her claim against Defendant.
I now consider the merits of that claim.

The building where Claimant fell, Van Hoesen Hall, is located near the center of campus and is build into a hillside. It is a three-story building which has two staircases. Students, faculty and administrators use the stairs to access the classrooms and offices in the building. Many also find it convenient to pass through Van Hoesen Hall when walking from one part of the campus to another. They use the building's stairs because the entrances on the downhill and uphill sides of the building are located on different levels. Consequently, the staircases are heavily traveled.

One morning at approximately 6:30 a.m., Patrick Stack, a janitor employed by Defendant, noticed that a piece of terrazzo had broken off a step in one of the stairways. The stairway was the one that was closer to the janitor's break room. The broken step was located on the flight that ran between the first and second levels. It was about three or four steps from the top of the flight. In his deposition, Mr. Stack testified that the broken part was at the leading edge of the step and was about ten inches long.

Stack recalled removing the broken piece and immediately alerting the maintenance department. He left the area without taking any steps to cordon off the broken step or to warn stairway users of the hazard. Taking specialization close to the heights of absurdity, he explained at trial that he believed that only the maintenance department had the authority to secure the area. He recalled Claimant approaching him in the break room later that day and telling him that she had just fallen on the stairs. He testified that he told her to file an accident report.

There is some dispute about when Stack noticed and reported the broken step and when Claimant fell. Stack gave two different accounts. He testified at trial that he found the broken step at 6:30 on the morning of Monday, September 20.
Stack also testified in his deposition that only 30-45 minutes passed between the time he reported the broken step and the time Claimant told him about her fall. These two pieces of testimony, taken together, suggest that Claimant fell at or shortly after 7:00 a.m. At trial, however, Stack recalled that Claimant told him she had just fallen at about 9:30 a.m.
Claimant thought her accident took place later in the day. She testified that she left her office at about 1:00 p.m. and fell a minute or two later. Her recollection is consistent with the accident report she filed on September 20 (Exhibit A), which also places the fall at 1:00 p.m.

Claimant described her fall in the following terms: She was on her way to obtain materials that her boss needed for a 2:00 p.m. meeting. She was wearing flat, rubber soled shoes. While descending the staircase, she lost her balance on the broken step and started to fall. She attempted to break her fall by grabbing the railing, but only succeeded in twisting and causing herself further injury. She finally landed at the bottom of the stairs. She looked up to the step where she had lost her balance and noticed that there was a six to seven-inch piece missing. After collecting herself for a moment, she stood up and went to exit the building. As she passed through the doors, she encountered Mr. Stack and another janitor. She told them about her fall and the defective step. She recalled the janitors telling her that they were aware of the condition and had reported it to the maintenance department on the previous Friday (September 17
Claimant introduced two work orders that were potentially related to this claim. A September 17, 1993 form (Exhibit 1) stated that in "Cornish/V-H," there was "[a] broken/loose step inside building, side door by entrance near Public Safety" that "David C." repaired on September 24
. A second work request (Exhibit 2), dated September 20, 1993, called for repairs to a "Broken Stair" in "VHH" and said "Pl Repair ASAP." The form reflects that "David C." also made these repairs on September 24.
David Colantonio was a mason/plasterer who worked in Defendant's maintenance department. He is the "David C." referred to in the work orders. He explained in his deposition that the two orders would have been generated by his department when it received telephone calls requesting repairs. The dates on the orders would have corresponded to the dates that maintenance received the requests. It was his belief that the September 20
work order (Exhibit 2) related to the step on which Claimant fell, and that the September 17 work order (Exhibit 1) related to a repair done in Cornish Hall. He said that he completed both repair jobs on September 24, and he estimated that the repairs took about 1-1 ½ days. He recalled that the broken part of the Van Hoesen Hall stairway was at the leading edge of the third or fourth step from the top of the flight. It was twelve inches long and one inch wide.
Mr. Colantonio said that it was the department's "first priority" to repair broken steps as soon as possible after it received a work order.
"There's a terrific amount of traffic" in the stairway in question, "[p]eople go down there by the hundreds." When he arrived to make repairs, he would have closed off the affected part of the staircase using a rope, a barricade and cones. Those wishing to use the stairs once it was barricaded would have had to stay on the other side of the staircase.
When it acts as a property owner, the State is held to the same standard of care as any private landowner (
Basso v Miller, 40 NY2d 233; Preston v State of New York, 59 NY2d 997). The State must act as a reasonable person in maintaining its property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury and the burden of avoiding the risk (Miller v State of New York, 62 NY2d 506, 511). But the State is not an insurer, and negligence may not be inferred solely from the happening of an accident (Tripoli v State of New York, 72 AD2d 823; Mochen v State of New York, 57 AD2d 719). To prevail on her claim, Claimant must establish by a fair preponderance of the evidence that the State breached its duty of care by (1) creating, or having actual or constructive notice of, a dangerous condition; and (2) failing to take steps to correct, or at least neutralize, the dangerous condition within a reasonable time. Claimant also must prove that the State's failure to maintain its property proximately caused her injury (Mandel v City of New York, 44 NY2d 1004).
Claimant has met her burden of proof here.

I find that Mr. Stack discovered the broken step at 6:30 a.m. on September 20
, giving Defendant actual notice of the condition. I was persuaded by Mr. Colantonio that the September 17 work order related to a different step. The fact that Claimant recalled the janitors telling her that they reported the defect on September 17 does not undermine her credibility. It may mean that the janitors were initially confused about which step Claimant was describing or that they simply gave her inaccurate information about the date that they reported the problem.
I further find that the accident occurred just after 1:00 p.m. on September 20
. Both witnesses were trying to be careful to remember the events of the day in question accurately. But Claimant's recollection seemed more trustworthy than Mr. Stack's. She was able to describe where she was going at the time of the accident, and related her departure time to preparations for a 2:00 p.m. meeting. Her testimony was also consistent with the accident report she prepared on the day in question. As described above, Mr. Stack offered two different accounts of when the accident took place. His first recollection would have had Claimant falling just after 7:00 a.m. His second recollection, that she fell at 9:30, was somewhat more plausible. However, Mr. Stack admitted at trial that he did not actually remember when Claimant reported the fall. Rather, he decided that she reported the fall at 9:30 because that was the time when he was usually in the break room.
Defendant argues that the broken step was only a trivial defect. It points out that a number of people, perhaps hundreds, used the step between 6:30 a.m. and 1:00 p.m. But the fact that no one else was hurt during that time does not mean that the step was not hazardous. The location of the broken step and the size of broken area convince me that the condition was indeed hazardous, and that Defendant had a duty to make sure that the hazard would not cause any injuries.

There is no question that Defendant breached its duty of care and that its breach contributed to Claimant's accident. It would have taken only a few minutes for Mr. Stack to barricade the broken part of the stairway in the manner Mr. Colantonio described . It would have taken even less time for him to post warnings. While Mr. Stack promptly reported the broken step to maintenance, he did not immediately take the other precautions, even though he knew that the staircase was about to be heavily traveled. As a result of his initial lapse, and the maintenance department's failure to respond promptly to his report, the staircase was unguarded for at least six and one-half hours before the broken step caused Claimant to lose her balance and fall.[1]

In spite of the overwhelming evidence of Defendant's negligence, it should not shoulder the responsibility alone. Claimant is required to see that which is before her and which is able to be seen (
Weigand v United Traction Co., 221 NY 39). There is nothing in this record that shows that her ability to see was impaired or obstructed in any way. In fact, she candidly admitted that she was looking straight ahead as she proceeded down the steps, and did not look down at any time. In light of this testimony, I find that Claimant was also negligent and must share some responsibility for her injuries.
The Court fixes the State's negligence at 85% and the Claimant's negligence at 15%.

The Chief Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability. This claim will be scheduled for trial on the issue of damages as soon as practicable.


December 12, 2000
Rochester, New York


Judge of the Court of Claims

Because of the minimal steps that Defendant would have had to have taken to prevent this accident, I would find a breach of the duty of care even if I concluded that Claimant fell within thirty minutes after Mr. Stack discovered the broken step.