New York State Court of Claims

New York State Court of Claims

BECHTOS v. THE CITY UNIVERSITY OF NEW YORK, #2001-001-526, Claim No. 99586


Synopsis


The Court grants defendant's motion to dismiss, made at close of claimant's proof, for failure to establish a prima facie case of negligence

Case Information

UID:
2001-001-526
Claimant(s):
RAMONA BECHTOS
Claimant short name:
BECHTOS
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99586
Motion number(s):

Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Robert J. Barsch, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Janet L. Polstein, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
July 19, 2001
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision
As she was walking to work along E. 69
th Street between Lexington and Park Avenues in New York City on September 29, 1995, claimant Ramona Bechtos ("claimant") slipped and fell on the sidewalk abutting a building occupied by Hunter College, a senior college of defendant City University of New York ("defendant" or "CUNY"), from which she seeks damages for injuries that she allegedly sustained as a result. In claimant's recounting, "as I was walking along, all of a sudden I was thrust forward, lunged forward because my right foot caught in a slab. Between the two sidewalks, wide sidewalk blocks there was a big slab and that's where my right foot got caught."[1] Poor quality color photocopies of photographs (claimant's exhs. 1-a, 1-b and 1-c) of the accident scene, taken approximately ten days or two weeks later, depict a sidewalk into which a slab containing two metal grates is set. Claimant testified that after she fell, she looked around and realized that a one and one-half inch horizontal "break" or "separation" and a one and one-half inch vertical grade differential between adjacent sidewalk surfaces was "what was holding my foot back as I was propelled forward."[2]
I. Discussion
As a general rule, the municipality, not an abutting landowner or occupant, is liable to a pedestrian injured as a result of a defective or dangerous condition of a public sidewalk. In other words, an abutting landowner or occupant does not, by reason of proximity alone, owe the public a duty to keep the sidewalk in a safe condition. There are exceptions to this general rule, however, for those instances where the landowner or occupant actually created the defective or dangerous condition causing the injury (
Neiberg v Remsenburg Realty Corp., 1 AD2d 1043; Colson v Wood Realty Co., 39 AD2d 511); or the sidewalk was constructed in a special manner for the benefit of the landowner or occupant, usually by installation of a structure or instrumentality, and the injury is related to the portion of the sidewalk subject to the special benefit use (Olivia v Gouze, 285 App Div 762, affd 1 NY2d 811; Kaufman v Silver, 90 NY2d 204; see also, PJI 2:111); or a statute, ordinance or municipal charter both specifically charges a landowner or occupant with a duty to maintain and repair the public sidewalk and provides that a breach of that duty will result in liability (Hausser v Giunta, 88 NY2d 449, 453; Coon v Ray, 266 AD2d 780). Here, claimant tries to conjure up an exception by cobbling together various bits and pieces of the deposition testimony of Julio Vazquez ("Vazquez"), the Executive Director of Facilities Management and Planning for Hunter College (claimant's exh. 3).
First, claimant points to Vazquez's testimony that CUNY contracted with Alex Figliolia Contracting, Inc. ("Figliolia") to replace a water main entering the North Building of Hunter College, which abuts E. 69
th Street, and that this work required opening the sidewalk and its subsequent repair, although Vazquez does not know who performed the sidewalk work (DT-V 14-15, 17).[3] Vazquez further testified that Figliolia was not frequently used by Hunter College, and that he "believe[d] the last time was sometime in late fall of ‘95" (DT-V 18). This evidence is plainly too insubstantial and non-specific to establish that CUNY created a dangerous or defective condition causing claimant's injury (see, e.g., Meyer v Guinta, 262 AD2d 463 [conjecture and surmise that abutting landowner must have negligently repaired sidewalk inadequate to rebut plaintiff's prima facie case for summary judgement]). In fact, nothing in the record even identifies the accident site as the sidewalk in front of the North Building (Hunter College's Thomas Hunter Hall also abuts E. 69th Street between Lexington and Park Avenues [DT-V 11-12, 27]).
Next, Vazquez testified that he did not know the purpose of the slab in which the two grates were set, but that there was no subway on E. 69
th Street and that the grates were not for purposes of fresh air intake into Hunter College's buildings (DT-V 16-17). This evidence fails to establish that the slab was installed at CUNY's behest or for its benefit and, in any event, claimant seems to attribute her fall to a purported gap and vertical grade differential to one side of the slab (see, n 2, supra). Vazquez also testified that Hunter College on occasion requested a permit from and/or worked with the New York City Police Department to close E. 69th Street to vehicular traffic for purposes of setting up a student fair. Claimant's attorney argues that these occasional street closures are a special benefit and thus create a duty on the part of CUNY to keep the sidewalk abutting its buildings on E. 69th Street in a reasonably safe condition, a proposition for which authority is notably lacking (see, e.g., Grant v Schwartz, 276 AD2d 526, 527 ["The concept of special use is a narrow exception to the general rule of no liability, and exists only when an abutting landowner derives some special benefit from his or her use of the public sidewalk, such as a driveway or a vault"]).
Finally, claimant leans heavily on Vazquez's testimony that he periodically inspected sidewalks around the perimeter of Hunter College's buildings, including public sidewalks, by walking around and looking at the "[c]oncrete, street side, granite side of the building, any trees that might be overhanging the sidewalk, if there's any litter that's on the sidewalk" (DT-V 20); and that Vazquez answered "Yes" when asked whether Hunter College paid for the upkeep of the sidewalk on E. 69
th Street, meaning "Does [Hunter College] pay for the repairs or the maintenance?" (DT-V 25). From this sparse testimony claimant concludes that CUNY voluntarily assumed responsibility for maintaining the public sidewalk on E. 69th Street and thus must have created the purportedly unsafe condition to which claimant attributes her fall. In the Court's view, neither proposition logically follows from Vazquez's affirmative answer to claimant's attorney's question in which the word "maintenance" was used, or from anything else in the record for that matter.
Assuming that claimant could establish an exception to the general rule that an owner or occupant of land is not liable to a pedestrian injured as a result of the dangerous condition of a contiguous public sidewalk, claimant makes no claim that CUNY actually knew about the purported sidewalk defect. Claimant instead argues constructive notice by coupling Vazquez's testimony that he inspected sidewalks and claimant's testimony that a one and one-half inch gap and a one and one-half inch vertical differential caused her to fall with the provision in the New York City Rules and Regulations defining a "substantial defect" to include, among other things, "[a] trip hazard where the vertical differential between adjacent flags is greater than or equal to ½ in. or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is ½ in. or more in depth" (NY City Rules & Regs, tit. 34, § 2-09 [f] [5] [iv]).[4]
Thus, the argument runs, because the defect was by regulatory definition "substantial" it was necessarily visible and apparent and had existed a sufficient length of time prior to claimant's accident for Vazquez to have discovered it during his inspections and for defendant to have remedied it.
There are several flaws in this line of reasoning. First, it depends upon the accuracy of claimant's description of the purported defect, the size of which she estimated and did not measure. The dimensions of the defect to which claimant attributes her fall (
see, n 2, supra) are impossible to discern from the blurry photocopies (claimant's exhs. 1-a, 1-b and 1-c) and, in fact, this defect, to the extent not obscured, appears trivial to the Court. Next, the regulatory definition relied on by claimant must be read in its context; namely, those Administrative Code provisions that impose upon an adjacent property owner (not an occupant, such as defendant) the duty to install, construct, repave, reconstruct and repair sidewalk flags, and procedures that the City may use to enforce that duty, including requiring the property owner to repair those flags containing a "substantial defect" as defined by the Code and concomitant regulations. Thus, the Code provision defining a "substantial defect" does not impose a specific duty on defendant the violation of which is some evidence of negligence (cf., Elliott v City of New York, 95 NY2d 730). II. Conclusion
Based on the foregoing, the Court now grants defendant's motion to dismiss the claim for failure to establish a prima facie case of negligence, which was made at the close of claimant's proof and on which decision was reserved: claimant has failed to establish the existence of any exception to the general rule that an abutting landowner or occupant is not liable to a pedestrian injured as a result of a defect in a public sidewalk; and, in any event, has presented insufficient evidence to support a finding or inference of an unreasonably dangerous condition, or of notice to the defendant of such a condition. The Chief Clerk is directed to enter judgment accordingly.

July 19, 2001
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]Unless otherwise indicated, quotations are from the Court's trial notes or audiotapes of the trial on liability.
[2]Although the record is hardly free from doubt, claimant does not appear to testify that her right foot was caught in the joint at the junction of the slab and the adjoining sidewalk surface. Rather, she seems to identify the gap and vertical grade differential causing her to fall as what appears on the photocopies as a dark, somewhat fuzzy, line running perpendicularly from the edge of the slab towards the curb line (see also, claim filed Jan. 4, 1999, exh. 1).
[3]"DT-V" followed by a number(s) refers to the corresponding page(s) in the transcript of Vazquez's deposition testimony (claimant's exh. 3).
[4]The same provision appears in section 19–152 (a) (4) of the Administrative Code of the City of New York.