MANNIX v. THE STATE OF NEW YORK`, #2003-016-005, Claim No. 96602
The State of New York was found not liable in connection with claimant's trip
and fall at the Park Avenue Armory in Manhattan.
LUANNE MANNIX AND MICHAEL MANNIX
Footnote (claimant name)
THE STATE OF NEW YORK`
Footnote (defendant name)
Alan C. Marin
Sullivan, Papain, Block, McGrath & Cannavo, P.C.By: Marie Ng, Esq.
Eliot Spitzer, Attorney GeneralBy: Gail Pierce-Siponen, Esq., AAG
January 24, 2003
See also (multicaptioned
This is the decision from the trial on liability of the claim of Luanne
which arises from her fall on a stairway at the Seventh Regiment Armory on Park
Avenue in Manhattan on March 8, 1996. Ms. Mannix was attending an art show
entitled Works on Paper
. The exhibit was presented by a private entity
which had rented the space at the armory.
According to Mannix, it was about
six o'clock in the evening, and she, together with a friend, went up the
staircase from the street level to the armory's first floor, the drill floor.
As she was about to purchase a ticket, claimant decided to use the restroom
facilities first, asked the ticket taker about a bathroom, and was directed down
the stairs to the basement. Ms. Mannix then picks up the narrative:
I went down the stairs, and as I got towards the bottom of the stairs, my heel
...slipped and got caught on the step, and I fell to the bottom of the
stairs...[my heel caught on the] edge of the step. The strip at the edge of the
step...It was the third step from the bottom."
According to Mannix, it was cold and had snowed lightly earlier in the day. No
moisture had been tracked into the armory, but the ground outside was wet.
Claimant was wearing a heavy winter coat over a pantsuit, ankle-length boots
with a one-inch leather heel and was carrying a pocketbook and holding onto the
railing as she made her way down the stairs. (Cl exh 8 are the boots).
Scott Swenson, the armory superintendent, took the stand and gave some basic
background on the building, which was constructed in 1887. The armory consists
of five floors and a basement for a total of 195,000 square feet.
The second floor was for the military, the fourth floor a public restaurant; the
other two floors – the third and the fifth – served as homeless
Mr. Swenson was in charge of the building and its maintenance, and he was also
responsible for scheduling events there - - "[p]ublic events, art shows,
antique shows, craft shows, stuff that would be open to the public."
About 20 such shows a year were put on, which took place on the first floor of
the armory. The more popular of the shows would draw up to 3,000 visitors in a
day. The drill area does not take up the entire first floor; it is in the
middle of the building east of the public entrance. Swenson recalled that the
Works on Paper
show would have rented the drill area and two other rooms
on the same floor.
On either side of the entranceway leading into
the drill area is a set of stairs which goes down one flight to the basement.
The basement contains public bathrooms, telephones and several locker rooms for
There is also an elevator to the basement and, for that
matter, public rest rooms on the main floor; claimant testified that she was
aware of neither of these possibilities.
The staircase Mannix used was 17 steps long, unbroken by any intermediate
landing. A wooden handrail was on her right as she descended. On the left was
a wall; the bottom three feet or so was wood-paneled (Def exh E). These were
wooden stairs that date to the end of the nineteenth century. In 1992, a
covering was affixed on top of each step. To evaluate how safe the stairs were
at the time of the injury, the parties called engineers as expert witnesses:
Stanley Fein on behalf of claimant and Harlan Fair for defendant. Mr. Fein
described this addition as an aluminum protector or an aluminum tread protector;
Mr. Fair termed it an anti-skid stair capping (cl exhs 5 & 6; def exh E).
The stairs were 57 inches wide.
The tread capping extended the entire depth of the stair, or 11 inches, plus an
inch and a half "nosing" as an overhang. The protective treads almost reached
completely across each step; they were 50 inches long and were slightly closer
to the end of the step on the bannister side than they were on the side with
wood paneling (cl exhs 3 & 4). It is undisputed that Mannix was walking on
the tread protector; claimant said that she fell at a point about one-third the
length of the step away from the bannister (cl exh 4).
One expert had the riser or height differential between steps as 7 1/4 inches
and the other at 7 ½ inches
, but more basically, it was not questioned that the height of each riser was
the same. Where it is otherwise, balance can be affected. Defendant's expert
measured the step claimant fell from and found a downward slope toward the
nosing of 2.1 %. On that third step, Fair measured the right to left slope to
be one-half of one percent. He also stated that the middle of the steps sagged
an eighth of an inch. Fair concluded that for the purposes of safe walking, the
stairs were essentially level. Claimant's engineer took no such measurements
and did not challenge Fair's conclusion that the steps were level and regular
from one step to another.
The surface of the tread protector alternates aluminum strips with ones made of
carborundum, which has a sandpaper-like texture. The carborundum strips are
wider than the aluminum strips, so that more than 50% of the surface of the
protector is carborundum. Defendant submitted into evidence a sample which its
expert believed was closely representative of the tread protectors in place on
the armory stairs (def exh G). Fair testified, and the sample shows this, that
the carborundum is 80% of the surface; it is not however clear from the photos
in evidence that the percentage is that high (see,
, cl exh 4).
inspected the accident site on April 2, 2002; defendant's expert visited twice
in June of 2002. When such a protector is new, the carborundum strip is raised
slightly above the aluminum, by about 1/16 of an inch
(see exh G).
Superintendent Swenson had testified that the treads looked the same at time
of trial as in 1996, i.e.
the carborundum strips were worn down
to the narrower aluminum strips, a view adopted by claimant's expert, Fein.
Defendant's expert concurred that when he saw the steps firsthand in 2002, they
were worn down.
* * *
It is not disputed that Luanne Mannix fell and was injured at the place and on
the date that she alleges. While the State is under a duty to maintain
reasonably safe premises (
Basso v Miller
, 40 NY2d 233, 386 NYS2d 564 (1976); PJI
is not an insurer (Mochen v State of New York
, 57 AD2d 719, 396 NYS2d 113
(4th Dept1977). In order for defendant to be liable for what happened to
claimant, it must be shown to have been negligent. Claimant must in this case
prove that what caused her to fall was either created by the defendant or that
defendant had notice of the condition, whether actual or constructive. See, for
example, Bernard v Waldbaum, Inc.
, 232 AD2d 596, 648 NYS2d 700 (2d Dept
But at the threshold, before determining the origin of the condition or notice
thereof, the condition must be shown to be a dangerous one.
Madrid v City of New York
, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI
2:90. Ms. Mannix at one point tried to suggest that her foot somehow got
caught. But there was no credible evidence to support that view, and as we shall
see below, Ms. Mannix herself gave statements on the matter which differed in
this regard. Further, I credit the testimony of defendant's engineer, Harlan
Fair that nothing in the layout or structure of the stairs would cause someone
to lose her balance: the height of each step was regular, the steps were level
and relatively deep.
What the evidence does show is that the carborundum strips were worn down to
the level of the narrower aluminum strips between them. From this, the
claimant's engineer, Stanley Fein, concluded:
In that the portion of the steps where the tread, the filler
material was worn down, was extremely slippery because there was nothing left
but the aluminum. And then there were portions – especially on the front
portion where it was raised up so it could cause a tripping hazard. The insides
should have been replaced prior to this occurrence.
Fein's theory is not persuasive. The State Building
provides that "Stair treads and landings shall be provided with nonslip
surfaces" (9 NYCRR § 765.4 [a]). Nothing contained in the record
credibly provides that the step with the protective tread was other than a
nonslip surface, even assuming the carborundum strips were worn down.
Defendant's expert measured the coefficient of friction, which claimant's expert
did not do.
Using two different tests, Mr. Fair found the coefficients to be 0.59 or 0.66 ,
with 0.5 being within good and accepted engineering practices. And this was in
2002, when if anything, according to Fair, the amount of friction would have
been less than it was six years earlier when Mannix fell, which was only four
years after the protective treads were installed. In fact, in one place on the
stairs which Fair believed to be away from the area in question and less subject
to wear, he measured a friction coefficient of 0.71. In addition, there was no
evidence that the nosing was not level with and solidly attached to the rest of
the tread protector.
In fact, as defendant accurately observes in its
, claimant's expert "did no testing of the surface, either [as] to its
composition or coefficient of friction. Mr. Fein did not rely on any standards,
voluntary or mandatory, or building code violations or measurements to support
his opinion." Furthermore, Superintendent Swenson testified there had been no
similar accidents on the stairs; nor were there any complaints received about
the condition of the stairs. See Zuppardo v State of New York
, 186 AD2d
561, 588 NYS2d 401 (2d Dept 1992).
At the time of Mannix's fall, the stairs were dry and free of debris. Swenson
has a maintenance crew that cleaned and inspected on a regular basis. A
dangerous condition clearly did not exist and claimant herself, by her differing
versions of what happened, seems to implicitly recognize this:
Claimant wrote to Swenson three weeks after the accident on March 27, 1996
and stated: "Approximately 3 steps from the bottom landing my right boot caught
on a metal strip of the step, causing me to lose my balance and to fall
forward." (Def exh B, p1) . There was no mention in her letter of any slip (or
for that matter, a problem with the lighting).
In claimant's affidavit of December 30, 1996, affixed to her motion for a
late claim, there was no mention of a slip: "The area was poorly lit, and as I
got to approximately the third step from the bottom, my right heel caught on a
raised metal strip at the end of the step causing me to be propelled forward..."
(Def exh C, ¶3).
Nor does the claim make mention of a slip: "As [Ms. Mannix] was
approximately three (3) steps from the bottom of said stairway, the heel of her
right boot caught on a raised metal strip at the edge of said step causing her
to trip and fall..." Def exh D, ¶4).
As noted, claimant also maintains that the stairs were poorly lit. An
otherwise safe situs becomes a dangerous condition if the lighting is
Klimowich v City University of New York
, claim no. 99495, filed March 20,
2001 (Marin, J). There was no testimony that lights were out and had not been
replaced. Nor was there any testimony to suggest that the number, placement
and wattage of the various lights were different on the date of the accident
from when defendant's expert measured the brightness. Fair measured the
lighting at between 1 and 1.2 foot candles, which meets the recognized standard
of 1.0 candles for such a location. Claimant offered no measurement of her own
to challenge Fair's readings.
* * *
In view of the foregoing, the claim of Luanne Mannix and Michael Mannix (claim
no. 96602) is
. All previous motions not ruled upon are hereby
LET JUDGMENT BE ENTERED ACCORDINGLY.
January 24, 2003
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
Michael Mannix has a claim that derives from
his wife's. References will be to claimant in the singular, and the name
"Mannix" will refer to Mrs. Mannix.
The building was presumably under the
auspices of the State Division of Military and Naval Affairs (see Court of
Claims Act §8-a); we heard testimony from the armory superintendent who
described himself as a State employee. Jurisdiction was not an issue in this
The State Uniform Fire Prevention and
Building Code, 9 NYCRR §600 et seq.
See the second unnumbered page from the