New York State Court of Claims

New York State Court of Claims

FARINO v. THE CITY UNIVERSITY OF NEW YORK, #2001-001-533, Claim No. 100006


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:
Calano & Calano, LLPBy: Stephen J. Belessis, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Ellen Matowik, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
May 3, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

While a student at the John Jay College of Criminal Justice ("the College"), a senior college of the City University of New York ("CUNY" or "defendant") (
see, Education Law § 6202 [5]), claimant Nicole Farino ("claimant") fractured her right foot on November 6, 1997 when she tripped and fell from the last step of the stairway connecting the entrance of the building occupied by the College at 899 Tenth Avenue in the City of New York to the public sidewalk (claim, dated December 17, 1998 and filed March 18, 1999 ["claim"], ¶ 7; T 10-11).[1] Claimant attributes this mishap to CUNY's negligent failure "to provide an adequate number of handrails, reasonably spaced and of sufficient length, on the front steps of [the College]. . . . [and] defendant's security personnel['s] neglect[] to clear loiterers away from the handrail, and from the steps generally" (claimant's post-trial brief, at 7).
I. Testimony

The stairway connecting the front entrance of 899 Tenth Avenue to the public sidewalk consists of nine stone steps that fan out from a landing in front of a double-doorway: the top step is approximately 13 feet wide; the bottom step is approximately 32 feet wide (T 37, 56; claimant's post-trial brief, exh. 2). The natural slope of Tenth Avenue in front of the building causes the sidewalk to slant likewise (T 60; claimant's post-trial brief, exh. 2). Because the stairway's bottom step is level, its riser height varies along its width where it meets the slanting sidewalk; in fact, the bottom step's tread appears flush with the sidewalk at the extreme downslope from the stairway's single center handrail (
Claimant testified that just prior to her accident, she was descending the stairway "bobbing and weaving" between the many students congregating on the steps, and was nowhere near the handrail (T 17;
see also, T 14-16). She was looking down because she "knew that the bottom step was slanted" (T 16),[2] but she fell from the bottom step to the sidewalk anyway because there was no nearby handrail for her to grab after she lost her footing (T 17).
Claimant had witnessed accidents in this area of the stairway "[a]lmost on a daily basis"; she seldom used the handrail because access to it was routinely obstructed by other students (T 19, 20). She testified that security guards were stationed at a post inside and about 10 to 15 feet away from the building's main entrance (T 19). When asked if she "had ever observed everyone [sic] that [she] can identify as a security officer at [the College] telling people not to stand on the steps," claimant responded "Very rare" (T 20).

Upon cross-examination, claimant recalled giving the following description of her fall at an examination before trial conducted on November 4, 1999:
We were walking down the front step of the school, and I was walking around people that were sitting on the steps. I got to the bottom, and I had forgotten that the step was crooked because I knew it was like that, but I wasn't thinking going down the stairs. We were just walking down the stairs normally like everybody else, and at the bottom when I got to the sidewalk my foot went down to the right, and I heard a crack, and I was on the ground
(T 22 [emphasis added]).
Claimant was aware of the slope of the public sidewalk at the bottom of the stairway because she had often walked up and down the steps during the year that she had attended classes at the College, and had, in fact, fallen on the steps or at the bottom step "[a] couple of times" before (T 25;
see also, T 24). When asked "At any time did you advise security that you were having a problem coming down the steps due to people . . . sitting on the steps?" claimant responded "No" (T 25). While descending the stairway on the day that she fell, claimant did not request anyone to move aside so that she might reach the center handrail, nor did she ask a security guard to clear the stairway in any way (T 25, 29).
Harlan Fair ("Fair"), a civil engineer who testified as claimant's expert (T 32-34), testified that the stairway in question violated certain sections of the State Uniform Fire Prevention and Building Code ("State Building Code" or "Code") (
see, 9 NYCRR 765.4 [11]), a similar section of the City of New York's building code ("City Building Code" or "Code") (see, Administrative Code for the City of NY § 27-375 [f] [1]) and the National Fire Protection Association 101, Life Safety Code ("NFPA 101"), which he characterized as "ancillary" to the State Building Code (T 35-41).[3] According to Fair, more than a single center handrail was required because the stairway was over 88 inches wide (T 36-37). He testified that the City and State Building Codes and NFPA 101 require additional handrails for this stairway, although they provide differing options for the handrails' configuration (T 36-40). When queried as to the cause of claimant's accident, Fair opined that claimant's
initial imbalance was caused by the sidewalk issue which she described with the short step,[4] . . . the accident, however, could not be short-circuited or stopped. She had no way to regain her balance because there was no handrail available for her. So these two in combination and particularly the lack of a handrail which is the code issue involved, the lack of a handrail in good position to be used is the primary focus

(T 40-41; see also, T 59).
Based upon his review of the deposition testimony of Robert S. Huffman ("Huffman"), the College's campus facilities officer, Fair believed that the stairway had been built in the early part of the 20
th century, sometime close to 1903 (T 48). He conceded that structures built before current codes were promulgated are not normally subject to their requirements; however, he insisted that the State Building Code was nonetheless applicable to this stairway because of the "extensive work" or "significant work" that had been undertaken in 1988 to install handicap ramps and the center handrail at the building's front entrance (T 48-49). Fair did not identify the building's owner (CUNY, the State, another entity) when this "significant work . . . at the front entrance" (T 49) was accomplished or who performed the work, or specify its cost.
Fair stoutly maintained that the provisions of the State and City Building Codes governing interior stairs would apply to this stairway, although it was exterior to the building (T 49-55, 63-65). He also readily acknowledged, however, that the City Building Code does not apply to a State-owned building (T 49).

II. Discussion
As previously noted, claimant predicates liability on the negligent failure to provide additional handrails on the stairway; and the security personnel's negligent failure to keep the stairway in general and the area in the vicinity of the center handrail in particular clear of students.[5]
At the close of claimant's proof, defendant moved for a directed verdict to dismiss the claim, arguing that claimant had not established that CUNY owned the building (T 67, 69-70); and/or that any of the cited City or State Building Code provisions applied to the stairway; and/or that there was any defect in the stairs. CUNY further argued that claimant's fall and subsequent injuries were entirely attributable to her nonobservance of an open and obvious condition of which she was admittedly well aware (T 67-68).
A. Claimant's failure to name the proper party as defendant
The claim alleges that CUNY owns the premises (claim, ¶ 2). CUNY, through the Office of the Attorney-General, answered as an affirmative defense that CUNY "does not own the situs of the accident described in the claim" (answer, dated April 26 and filed April 27, 1999, ¶ NINTH). Moreover, Huffman, the College's campus facilities officer, testified in his examination before trial held on November 4, 1999 that the State of New York ("the State") owns 899 Tenth Avenue.
Notwithstanding CUNY's affirmative defense and this deposition testimony, claimant has never moved to amend the claim to substitute the State for CUNY or to add the State as a party.[6]
In roughly comparable circumstances, courts have treated such a deficiency in pleading as a procedural irregularity that may be ignored so long as the proper defendant has been served with the claim (see, Martino v New York State Thruway Auth., 154 Misc 2d 905, 911; see also, Ibekweh v State of New York, 157 Misc 2d 710, 711 [when "an entity has been properly served with a pleading such that although omitted from its caption, the recipient reasonably should have been put on notice that it was a target of the lawsuit, jurisdiction is acquired and the error of the caption may be treated as a mere irregularity"]). Here, the question becomes moot since claimant has failed to establish the liability of the building's owner (the State) and/or its occupant (CUNY) under any theory, as will subsequently appear.
B. Liability based on alleged Code violations
As an initial matter, claimant must demonstrate that the stairway is, in fact, subject to the various City or State Building Code provisions alleged to have been violated. This she has not done.

First, Fair conceded that the City Building Code does not cover a State-owned building (T 49). Claimant disputes her own expert by way of citation to
Rothstein v City Univ. of N. Y. (148 Misc 2d 911, affd 194 AD2d 533) (see, claimant's post-trial brief, at 9, n 3), a case in which the Court of Claims applied the City Building Code to what appears to have been a State-owned building; however, as the Honorable Alan C. Marin observed, "the applicability of the New York City Building Code to a City University facility . . . was not an issue at the appellate level, or below, in Rothstein" (Marrero v City University of New York, Ct Cl, Marin J., UID # 2001-016-051, n 3 [available online at]). Specifically, defendant in Rothstein did not contest the City Building Code's applicability, but rather asked the Court of Claims to disregard purported Code violations not pleaded in either the claim or the bill of particulars.
Next, even if it were applicable to a State-owned building, the City Building Code took effect on December 6, 1968 (
Administrative Code for the City of NY § 27-105) and buildings constructed prior to its effective date, such as 899 Tenth Avenue, are exempt from compliance with its provisions by virtue of a grandfather clause (see, Administrative Code for the City of NY § 27-111; Pappalardo v New York Health & Racquet Club, 279 AD2d 134, 138). The City Building Code's provisions may nonetheless apply when an exempt building is altered, but (absent other exceptions not applicable here) only if the cost of alterations made within a twelve-month period exceeds a certain percentage of the entire building's value (Administrative Code for the City of NY §§ 27-115 through 27-117). Claimant presented no evidence of the cost of the "extensive work" or "significant work" undertaken at the building's front entrance in 1988 or of the building's value (id., § 27-119). Thus, she has not established that the City Building Code applies (see, Sanchez v Biordi, 259 AD2d 434, lv denied 94 NY2d 754). As a result, the Court need not reach the question of whether section 27-375 (f) (1) calls for additional handrails on the stairway.[7]
Similarly, claimant did not establish that 899 Tenth Avenue, built before the State Building Code was promulgated in 1984, was subject to that Code's provisions (
see, 9 NYCRR 651.2, 765.4). Minor alterations may be made to preexisting structures without compliance with the State Building Code's provisions (9 NYCRR 1231.3 [a]); and an existing building is not subject to its requirements "unless the building undergoes a renovation which, during any six-month period, has costs exceeding 50% of the replacement cost of the building" (9 NYCRR 1231.3 [c]; Vachon v State of New York, 286 AD2d 528, 531 [where pedestrian attributed slip and fall, in part, to absence of second handrail on steps of State Capitol's south portico and single handrail was installed in 1995 at cost of approximately $200 at time when building's assessed value exceeded one billion dollars, trial court properly found State Building Code and hence 9 NYCRR 765.4 (a) (11) inapplicable because renovations did not exceed 50% of this preexisting building's replacement value during six-month period]; see also, Cole v Emunah Gen. Contr., 227 AD2d 877; 9 NYCRR 1231.3 [c]). As previously noted, claimant presented no evidence of the costs of the work accomplished at the building's front entrance in 1988 (9 NYCRR 1231.3 [c], Vachon v State of New York, supra), nor did she offer any other evidence to show that this work amounted to more than minor alterations of the building (9 NYCRR 1231.3 [a]).
C. Common-law negligence
A landlord or occupant is not the insurer of the safety of those coming onto the premises, but rather has a duty only to maintain the property in a reasonably safe condition in view of all the circumstances, with foreseeability as a measure of liability (
Basso v Miller, 40 NY2d 233). The claimant bears "a very fundamental and necessary burden" to show a dangerous or defective condition because of which defendant should have foreseen the reasonable possibility of injury to users (Allen v Carr, 28 AD2d 155, 157, affd 22 NY2d 924), yet failed to remedy or warn in a timely fashion (Basso v Miller, supra). There is no duty to warn of an open and obvious danger that can be readily observed by the use of one's own senses, however (Tagle v Jakob, 97 NY2d 165; "[u]nder such circumstances, the condition is a warning in itself" [Tarricone v State of New York, 175 AD2d 308, 309]).
Further, where a dangerous or defective condition exists, notice is a prerequisite to finding liability. Specifically, the landowner or occupant either must have created the dangerous or defective condition or must otherwise have actual or constructive notice of it (
Batiancela v Staten Is. Mall, 189 AD2d 743; Browne v Big V Supermarkets, 188 AD2d 798).
Next, the dangerous or defective condition must be a substantial factor in bringing about the claimant's injury (PJI 2:70;
Boltax v Joy Day Camp, 67 NY2d 617). Such is not the case where the claimant's own culpable conduct is the sole cause of the injuries sustained (Iwaszkiewicz v Callanan Indus., 258 AD2d 776; Daversa v Harris, 167 AD2d 810).
Finally, a claimant bears the burden of proof by a fair preponderance of the credible evidence (
see, PJI 1:23). The trial court, in its capacity as trier of facts, must view the witnesses and consider their statements upon direct and cross-examination in determining whether each witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22; see also, Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).
As an initial matter, the "mere absence of a handrail [or, as here, multiple handrails] on an exterior stairway is not a defective condition, an unusual hazard or a peculiar danger" (
Bohlig v Schmitt, 5 AD2d 1002, affd 5 NY2d 885; see also, Easter v Cocco, 16 AD2d 1031, appeal dismissed 12 NY2d 756 ["There is no common-law duty requiring a landlord to erect a handrail for an exterior stairway in the absence of a defective condition or unusual hazard"]; Gauss v State of New York, 286 AD 934 ["In the absence of any statutory requirement or some unusual hazard not shown, no duty rested with the State to provide (a) (hand)rail"]; Gallagher v St. Raymond's R. C. Church, 21 NY2d 554, 556-557 ["It would be inconsistent with common experience . . . to hold that the failure to have a handrail on the steps constituted an unusual hazard"]). Although claimant testified that accidents were a frequent occurrence on the stairway, she presented no proof, such as accident reports, to substantiate this testimony or otherwise show the existence and CUNY's notice of any dangerous or defective condition of the stairway.
Next, claimant was unquestionably aware of the sloping nature of the public sidewalk in front of the building, but had momentarily "forgotten" or "wasn't thinking" (T 22) about it as she walked down the steps. Moreover, she chose not to ask the students allegedly obstructing her access to the single center handrail to move out of the way so that she could use it as she descended (T 25). Fair recognized this when he conceded that claimant had the option of walking down the middle of the stairway near the center handrail, although it might have been less convenient (T 59).

Finally, there is no reason to suppose that an extra handrail would have prevented claimant's injury (
see, e.g., Larkins v Hayes, 267 AD2d 524 [plaintiff's expert's averments that handrails would have enabled a claimant who slipped on ice to bring her subsequent slide under control were speculative and insufficient to deny defendant's motion for summary judgment]). Indeed, if one were to assume that the "crack" heard by claimant as she stepped off the bottom step (T 18, 22) was the sound of her foot fracturing, and to accept her testimony that she fell after the "crack," it is hard to see how the presence of a handrail would have averted her injury. Put another way, claimant has failed to establish by a fair preponderance of the credible evidence that the absence of an additional handrail or any other supposed defect of the steps or stairway was a substantial cause of her injury (see, Vachon v State of New York, Ct Cl, Collins, J., UID #2000-015-511, filed May 17, 2000, affd 286 AD2d 528, supra).
D. The alleged lack of security as the cause of claimant's fall
Generally, the duty of care owed by a university to its students is narrowly drawn and does not include the duty to supervise their activities outside of the classroom or to protect them from the dangerous activities of other classmates (
Broeker v State of New York, Ct Cl, Patti, J., UID # 2000-013-508, citing Eiseman v State of New York, 70 NY2d 175, 190; Rothbard v Colgate Univ., 235 AD2d 675, 676; Talbot v New York Inst. of Tech., 225 AD2d 611, 612-613). Assuming that students sitting on a campus building's steps on a sunny day (T 28-29) present a danger and that security personnel owed a duty to claimant to clear her path, the extremely limited testimony on this unpleaded theory of liability does not even establish that the security personnel were CUNY employees (T 30), much less that their purported nonfeasance was a substantial cause of claimant's injury.
III. Conclusion
Based on the foregoing, the Court now grants defendant's motion for a directed verdict, which was made at the close of claimant's proof and on which decision was reserved; or, alternatively, the Court dismisses the claim because claimant has not proved by a fair preponderance of the credible evidence that CUNY's breach of any duty proximately caused her injury. In view of the circumstances described, any hazard presented by the stairway was open and obvious and known to claimant, and her own culpable conduct was the sole cause of her injury.

Any other motions on which the Court previously reserved judgment or which were not previously decided are denied. The Chief Clerk is directed to enter judgment accordingly.

May 3, 2002
Albany, New York

Judge of the Court of Claims

Numbers preceded by the letter "T" refer to the corresponding page(s) in the transcript of the liability trial.
As noted previously, the sidewalk slopes, not the bottom step.
Claimant asserts that the NFPA 101 "could possibly apply" (claimant's post-trial brief, at 9). NFPA 101 has been incorporated by reference and made applicable to State hospitals (see, 10 NYCRR 702.3 [b], 711.2) and State mental health facilities (see, 14 NYCRR 77.3 [a] [2]); however, the State Building Code merely provides that compliance with the applicable provisions of those reference standards specified in 9 NYCRR Part 1250 generally constitutes compliance with the State Building Code (see, 9 NYCRR 610.1 [a], 610.2, 1250.1 [a]). The NFPA 101 is listed as an issuing organization at 9 NYCRR 1250.2, and its Code for Safety to Life from Fire in Buildings and Structures, No. 101-1991, is listed at 9 NYCRR 1250.3 as an applicable reference standard. In other words, compliance with NFPA 101 is deemed compliance with the State Building Code, but non-compliance with NFPA 101 does not violate the State Building Code.
Fair testified that stairs should always be level, and that the stairs at the College's front entrance appeared to him to be level (T 60).
This second basis of liability was never pleaded with any degree of particularity in the claim or the bill of particulars. Both documents focus upon the stairway's alleged design defect; i.e., an allegedly inadequate number of handrails (claimant's post-trial brief, exh. 4).
Claimant, by way of a footnote in the post-trial brief, has, however, asked the Court to reopen the trial proceedings to allow submission of the transcript of Huffman's deposition in order to establish the State's ownership of 899 Tenth Avenue (claimant's post-trial brief, at 6, n 2). The Court notes that the City of New York's web page ( includes a link through city agencies to the New York City Department of Finance's home page, from which the City's assessment rolls may be searched by address. A search of the assessment roll for 899 Tenth Avenue identifies the State as the current property owner, a fact of which the Court may take judicial notice.
The Court notes, however, that the First Department's decision in Gaston v New York City Hous. Auth. (258 AD2d 220) strongly suggests that it does not.