This decision follows the trial on liability of the claim of Ana Maria Marrero
arising from her fall at Hunter College while attending her granddaughter's
graduation on the afternoon of January 28, 1997. The ceremony took place in the
Summit Hall auditorium in the North Building on the campus of Hunter, a senior
college of the City University of New York, which is located in Manhattan.
Ms. Marrero testified and called an expert witness, engineer Stanley Fein. The
defendant also put a consulting engineer on the stand, Harlan Fair, as well as
sergeants Justino Rosado and Carlos Sanchez of the college's Department of
That the events in question occurred in the context of such an occasion does
not make Marrero a credible witness: her testimony was laden with the
inconsistent and the improbable.
Graduation ceremonies were scheduled for 3 p.m. According to Marrero, she and
her granddaughter Sonya entered the auditorium at about 2 p.m. Seats were
unassigned, and claimant said they took two on the aisle, with claimant the
closest thereto, three rows from the back in the balcony area (see cl exhs 1 and
4). Their seats were reached by a step from the aisle. Marrero contended that
these were the last, or just about the last seats remaining, a statement that
does not mesh with: i) Sgt. Rosado's statement that as of 2 p.m. only 100
guests had been let into the auditorium; and (ii) the existence of two rows
behind them, even farther from the stage.
Claimant recounted that about 15 to 30 minutes after taking her seat, she got
up to go to the bathroom, and fell. She had not been carrying anything, not
even a pocketbook, and no one was blocking or sitting in her path. At her
deposition taken April 13, 1999
, Marrero testified as if she had fallen on some sort of obstructive defect in
the row in front of her seat: Q. Did you observe what it was that caused you
A. I didn't see the piece of cement [def exh D, at p.20]... These
are the seats and on this side a piece is out standing.
Was there a piece of cement sticking out of the chair?
A. Yes. [Id.
Q. When you were leaving your seat, you say you stepped on a
piece of cement and fell?
A. That was sticking out from the
Q. How big was the piece of cement that was sticking out from the
A. Not very big.
Q. Can you describe for me in inches about
how big it was?
A. I don't know how to say in inches. [Id.
Q. So it was smaller than [an 8½ by 11 inch piece of
A. I believe so.
Q. This piece of cement was it attached
to your seat? A. Yes.
Q. Was it part of the aisle that was next to your
seat? A. Yes.
Q. So where you slipped was in the aisle next to your seat;
is that correct? A.Yes. [Id.
By the time of trial, claimant's case was based on the physical arrangement of
an aisle that is the series of steps leading perpendicularly away from the stage
and the access between it and a row of seats. According to claimant, this was
unsafe because of the six-inch drop between the two, which was not highlighted
by striping or coloring; nor was the lighting at the time sufficient. At trial,
Ms. Marrero circled the alleged offending design feature in a photograph (cl exh
1), but borrowed some of the syntax from her deposition, albeit modified: "It
is like a little piece, like a step, like a little piece of cement."
A witness' testimony may not conform to the facts as they occurred for a number
of reasons. It is not simply that a witness is intentionally lying, but may,
for example, be expressing herself
But with that said, such should be considered in view of the claimant's
testimony about the lighting conditions in the auditorium. Ms. Marrero's
testimony regarding the lighting conditions is totally unworthy of
In claimant's deposition she conceded that there were lights on in the back of
the hall. At trial she insisted that "[i]t was dark in the back, there were no
Sergeants Rosado and Sanchez, who had overlapping shifts that day, testified to
their certainty that the lights in the hall were on brightly, and were most
convincing on that point. Sgt. Rosado explained: "[There is] lighting in the
ceiling, you have lighting on the sides, you have lighting on the stairs also,
on stage...Q. [I]s there also lighting in the back of the balcony. A. Yes."
As to what actually happened, claimant testified in her deposition that her
granddaughter Sonya saw her fall, but she did not call her as a witness - - a
person with information on a material issue who would be expected to provide
non-cumulative testimony in favor of the claimant and was under the control of,
and available to Ana Marrero.
Savage v Thomas J. Shea Funeral Home, Inc.
212 AD2d 875, 622 NYS2d 363
(3d Dept 1995); PJI
1:75. The younger Marrero attended trial the first
day, but apparently had a doctor's appointment the next and final day; we were
not informed where and at what time.
Given also that accommodations were made in the scheduling of other witnesses
at trial, and that no request was made to schedule Sonya Marrero, defendant is
entitled to the missing witness inference (
1:75). As the trier of fact, while not required under 1:75 to draw
the strongest inference from the granddaughter's failure to testify, it is
clearly appropriate to do so here: the fall did not happen as claimant
described it, or to put it another way (especially in view of claimant's
shifting testimony from deposition to trial) - - we do not know what happened.
If claimant cannot show what happened, she certainly cannot meet her burden, and
this matter must be dismissed.
With that said, it is not inappropriate to comment briefly on the claimant's
theory of the case as presented at trial - - that she fell due to the
configuration of the row and aisle,
the floor in front of her seat was six inches higher than the
adjacent step in the aisle leading down toward the stage. Defendant argued that
any building code design requirements are applicable to building owners and this
auditorium is part of those facilities of the college which are, in fact, owned
by the Dormitory Authority of the State of New York, an entity over which this
Court lacks jurisdiction. (see def exhs B & G).
Even assuming the auditorium, constructed by the federal government in the late
1930's and owned and operated by a state entity, is subject to a New York City
, defendant's expert, Harlan Fair, maintained there would be in any event no