New York State Court of Claims

New York State Court of Claims

BATHARD v. CITY UNIVERSITY OF NEW YORK, #2000-019-002, Claim No. 98738


Claimant tripped over utility box located in the walkway area of a conference room floor. The Court found CUNY had actual and constructive notice of a dangerous condition due to uncontroverted testimony CUNY personnel knew of its existence and had placed objects over the box for protection and/or warning. Claimant conceded the box was readily observable and that he had prior knowledge of its existence, but was temporarily distracted. Liability was apportioned 50/50 between the parties.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption was amended to reflect the City University of New York as the only proper party, pursuant to a stipulation of the parties filed February 11, 1999.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
NASSY, HILL, LANGSAM & MOIN, LLPBY: Melisande Hill, Esq., of counsel
Defendant's attorney:
BY: COHEN & GOLDSTICK Peter Mensching, Esq., of counsel
Third-party defendant's attorney:

Signature date:
March 16, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Joseph Bathard, brings this Claim for personal injuries he sustained arising out of an accident that occurred at the City University of New York Graduate Center (hereinafter "CUNY"), located at 43 West 42nd Street, New York, New York, on May 20, 1998. The trial of this Claim, heard on February 7, 2000, was bifurcated and this Decision addresses the issue of liability only.

On May 20, 1998, Claimant was a 59-year-old graduate student working on a Masters and Doctorate Degree in French Literature at CUNY. Sometime prior to that date, Claimant was informed that he should appear in the offices of CUNY's Graduate French Department (hereinafter "Department") located in Room 4049 of said premises for an 11:00 a.m. registration on May 20, 1998. Although the Claimant was working on his doctoral thesis in French Literature, he had not been inside the Graduate Center or Department offices for approximately one year.

On May 20, 1998, Claimant arrived at the Graduate Center at 10:50 a.m. and went to Room 4049 to see Carole Kulikowski, Assistant Program Officer and Secretary for the Department. Claimant entered the room which he described as a conference room containing a couch, a table, some chairs, and student and facility mail boxes. Directly across the room from the entranceway was the entrance to Ms. Kulikowski's office. Claimant went to her office only to find that Ms. Kulikowski had left a note stating she would return at 1:00 p.m. Claimant then went back into the conference room area to lay down on the couch. Claimant testified he stayed on the couch from about 11:00 a.m. to 11:55 a.m. reading and reviewing his doctoral thesis proposal. While on the couch Claimant saw an electrical box or utility box outlet (hereinafter "utility box") which was located approximately seven feet from the entranceway into Room 4049 and approximately four to five feet from the right-hand wall of the conference room. The utility box was located right in the walkway of the open area of the conference room. Claimant indicated the utility box was bolted to the floor and described it as being a gray metallic box approximately five inches long, four inches wide, and three and one-half inches high. Although Claimant had not been in these offices in approximately one year, he recalled seeing this utility box on his prior visits.

At approximately noon, Claimant left the Graduate Center conference room and went to get some coffee. On his return to the conference room he was following another student, whom he did not know, carrying a cup of black coffee in his right hand and holding a shoulder bag over his left shoulder. As Claimant followed this student into Room 4049, he was distracted by his name being called by a fellow student. Claimant testified he took several steps into the room while looking for the person who had called to him. Claimant admits he was not watching where he was going. Claimant caught his foot on the utility box located in the middle of the walkway, causing him to fall on his left side, spill his coffee, burn his face, and sustain other injuries. After the fall, Claimant picked himself up off the floor and went in to complete his registration obligations. He subsequently reported this incident to the Security Office at the Graduate Center.

Carole Kulikowski, is employed at the CUNY Graduate Center. She has been employed at the Center for approximately 15 years and currently holds the position of Assistant Program Officer and Secretary for the Department. She testified that on May 20, 1998, she was in her office which was located adjacent to the conference area of Room 4049. The witness confirmed that the conference area, measuring approximately 40' x 20' contained a couch, two large chairs, a table, some filing cabinets, and student and facility mailboxes. She also verified there was a utility box protruding from the floor as described by Claimant and similarly located. More importantly, the witness testified that this utility box had been there at least since 1989. Ms. Kulikowski indicated she as well as the Program Director and Executive Officer of the Department, Professor Gutsworth, had both requested the box be removed since it was protruding from the walkway area of the floor. Ms. Kulikowski also confirmed Claimant's testimony that this utility box was in the traffic area of the conference room. Since the building maintenance department had not removed the box, Ms. Kulikowski testified the Department normally would place either a table or a garbage can (upside down) over the same so as to provide some protection and warning to those entering and leaving the Department conference room. Ms. Kulikowski also confirmed she was in her office at approximately 12:30 p.m. on May 20, 1998, when she heard a loud thump. While she testified that she did not see the Claimant fall and is not sure exactly what happened, she assumed and later learned that the thump was, in fact, the Claimant falling as a result of his tripping over the utility box.

It is well settled that both the owner and operator of premises have a duty "[t]o keep it in a reasonably safe condition, considering all of the circumstances including the purpose of the person's presence and the likelihood of injury (see, Basso v Miller, 40 NY2d 233)." (Macey v Truman, 70 NY2d 918, 919). While the defendant is not held to the standard of an insurer, there clearly is a duty of reasonable care to remove a hazard or provide adequate warning thereof. (Preston v State of New York, 59 NY2d 997). In order to establish a prima facie case of negligence, Claimant must demonstrate the defendant either created a dangerous condition or had actual or constructive notice through its employees of the dangerous condition and a reasonable time to correct it or warn others. (Kraemer v K-Mart Corp., 226 AD2d 590; Gordon v American Museum of Natural History, 67 NY2d 836, 837).

Here, the uncontroverted testimony indicates this utility box was located within the walkway area of the Department's conference room. Moreover, the presence of tables, chairs, filing cabinets, and the student/facility mailboxes, indicates this room was open for use by numerous people during the course of the day. As such, it was clearly foreseeable that people would come and go and have to walk in and around the area where this utility box was located. Furthermore, the proof supports the conclusion that the location of the doorway as well as the layout of the conference area encouraged the flow of pedestrian traffic directly into the pathway where the utility box was located. Moreover, the uncontroverted testimony also shows that this box was situated in this location for at least eight or nine years and it appears that multiple requests had been made for its removal. In fact, Department personnel went so far as to cover the box at various times with a table or an inverted garbage can. Consequently, the Court has no difficultly in reaching the conclusion that defendant allowed a dangerous and defective condition to exist, of which it had actual and constructive notice through its employees, and failed to remove or warn against the hazard. In short, the defendant's conduct under these circumstances clearly constitutes negligence.

However, it is equally well settled that a person is bound to see that which by the proper use of their senses should have been seen. (Tarricone v State of New York, 175 AD2d 308, 309, lv denied 78 NY2d 862). In the instant case there is no question that the Claimant should have seen that which was open to view and unobstructed, since the utility box was not a latent defect hidden from the Claimant's sensory perceptions. Rather, Claimant by his own testimony indicates he was distracted by another student as he was walking into Room 4049, was not looking where he was going, and momentarily forgot about the utility box and the hazard it posed.

While the doctrine of momentary forgetfulness no longer technically applies in New York since this State adopted the concept of comparative negligence, temporary lapses of memory or forgetfulness of the existence of a hazard by an injured claimant may be considered by the finder of fact when apportioning liability. (Flynn v City of New York, 103 AD2d 98, 102-103). Based upon the foregoing, and in light of Claimant's testimony at trial, the Court is satisfied that Claimant bears substantial responsibility for contributing to his own injuries to an extent as great as the defendant who callously allowed this dangerous and defective condition to exist for almost a decade. Consequently, the Court finds that liability should be apportioned 50% to the defendant and 50% to the Claimant for any injuries suffered by the Claimant as a result of this accident.

The Court will set this matter down for a trial on the issue of damages as soon as practicable.


March 16, 2000
Binghamton, New York

Judge of the Court of Claims