New York State Court of Claims

New York State Court of Claims

MARRERO v. CITY UNIVERSITY OF NEW YORK, #2001-016-051, Claim No. 98487


Synopsis



Case Information

UID:
2001-016-051
Claimant(s):
ANA MARIA MARRERO
Claimant short name:
MARRERO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98487
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Roura & MelamedBy: Jerry Vasquez, Esq
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Nancy Hornstein, AAG
Third-party defendant's attorney:

Signature date:
July 9, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 Public Safety.
***

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[1]
, 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 to trip?
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.

Q. Was there a piece of cement sticking out of the chair?
A. Yes. [Id., p.21].

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 chair.

Q. How big was the piece of cement that was sticking out from the chair?
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., p.23].
...
Q. So it was smaller than [an 8½ by 11 inch piece of paper]?
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., p.24].
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 unclearly.[2]
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 belief.
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 lights."
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 (
PJI 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,
i.e., 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 building code[3]
, defendant's expert, Harlan Fair, maintained there would be in any event no violation:
The step to the row would comply with all three codes [1928, 1938 and current]. The step on the aisle conforms to the prior two codes, and the current code as far as the geometry goes, but it does not have the stripe, which would be [required] if it were built currently...So it's in conformance with the building code in a general sense, because it's required as of the time it was constructed.

Nor is this an otherwise dangerous condition, without regard to any building code, which could have been remedied by reflective tape or some kind of painted striping.
Madrid v City of New York, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI 2:90. Fifteen minutes before her fall, claimant was able (with the same lighting conditions) to negotiate the six-inch differential between the aisle and the floor of the row in front of her seat; there were no reported similar accidents, and from the photographs and testimony, there is some contrast in color between the row and the aisle.

***


In view of the foregoing, Ana Maria Marrero has failed to prove her case by a preponderance of the evidence, and her claim (no. 98487) is
dismissed. All motions not previously ruled upon are deemed denied.

LET JUDGMENT BE ENTERED ACCORDINGLY


July 9, 2001
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] Claimant was deposed in two sessions, April 13 and June 24, def exhs D and E, respectively.
[2] PJI 1:8 & 1:41, which also includes that the witness did not accurately see or hear what she is testifying about or because the witness' recollection is faulty.
[3] The applicability of the New York City Building Code to a City University facility at Brooklyn College was not an issue at the appellate level, or below, in Rothstein v City University of New York, 194 AD2d 533, 599 NYS2d 39 (2d Dept 1993), aff'g 148 Misc 2d 911, 562 NYS2d 340 (Ct Cl 1990).