New York State Court of Claims

New York State Court of Claims

USMANI v. CITY UNIVERSITY OF NEW YORK, #2003-016-019, Claim No. 97732


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:
Tantleff, Cohen & Tantleff, P.C.By: Edward D. Tantleff, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 6, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the liability trial of the claim of Muhammad Usmani[1]
arising from his fall while he was serving as a security guard at New York City Technical College, a senior college of the City University of New York (CUNY), which is located in downtown Brooklyn.
Mr. Usmani was actually in the employ of a private security firm, Trent Investigations & Security International Corp., and had been assigned regularly for about a year to a post at New York City Tech pursuant to a contract between the security firm and the college. Prior to trial, defendant had moved to dismiss the claim on the grounds that Mr. Usmani was a "special employee" of the City University, whose only remedy therefore would lie with the workers' compensation system. See
Thompson v Grumman Aerospace Corp., 78 NY2d 553, 578 NYS2d 106 (1991). Because material issues of fact remained outstanding, the defendant's motion was denied by a Decision and Order filed July 1, 2002. In any event, it is unnecessary to reach such issue - - claimant here fails to make out a case of negligence on the part of the City University.
Mr. Usmani was working an evening shift on February 13, 1997 and was assigned to the main entrance, which was used by students, faculty, staff and visitors. That entrance consists of three sets of double doors, which are glass with metal frames (cl exhs 2 & 5). Claimant was responsible for checking IDs, in order to "make sure no unauthorized person enters the building" (cl exh 8,
p. 13). These doors were locked at 10 o'clock every evening. The accident at issue here occurred just after 11 p.m; it was only 28 degrees outside, the sky was cloudy and the ground was dry (cl exh 6). Claimant described what happened next:
I was on my post, and a gentleman came near the entrance door and he wanted to ask me something. So I opened the entrance door with my ... right-hand first - - second door, and as I opened it, my foot got jammed on a loose piece of metal and I fell down.
Also taking the stand, besides Mr. Usmani, were two public safety officers from the college. Lionel Presume, called by claimant, was a sergeant in 1997[2], and Lt. Guy Lovell testified on defendant's case. In addition, claimant read from the deposition of Samuel Rose, a public safety officer at the college (July 19, 2000, cl exh 8). Sgt. Presume, who responded to the scene, submitted two documents, one entitled Incident Report, the other Report of Accident (cl exhs 6 and 7). In the former, claimant is reported as having stated "that he fell when opening one of the front doors, his leg got caught by a piece of metal strip that protruded from the door." (p. 2).
These strips run the vertical length of each of the doors on the edge that meets its pair when the doors are closed (see the photos that are cl exhs 1, 2, 3 and 5). According to Sgt. Presume, the strips act as a sealant against cold air. Mr. Usmani testified that the door he opened

was the left door of the right most pair of doors, as viewed from the outside, the vantage of all of the photographs in evidence. The metal strip protruded from the right door of this pair (See the red "X" and "O" pencil markings Usmani made on cl exh 1). Each door of this far right pair has "ENTRANCE" separately printed in red capital letters (cl exh 1).
Sgt. Presume, who came to the scene just after the accident, recalled that as to the front doors, "[t]here was ...a piece of metal strip that came off...that was protruding from the doors."
He described it as less than a foot in length and "medium" in width. Officer Rose, who was a dispatcher directing calls to the appropriate officer, testified in his deposition that he had just gotten off work and saw Usmani sitting by the radiator after he had fallen. Rose noticed the protrusion at that time, but described it as quite small – two or three inches long, and less than an inch in width. Mr. Usmani had stated that the metal strip was a foot and a half long and "[n]ot too wide."
The photos taken the next day (including cl exhs 1 and 3) show a missing portion of the strip that looks to have been 10 -12 inches long and no more than an inch wide. The missing piece is on the lower part of the door's edge, beginning about 4 to 6 inches from the ground. The strip was colored white, which was distinct from the silver or metallic colored frame to which it is affixed by some sort of fasteners placed about a foot apart.

It is undisputed that Mr. Usmani unfortunately suffered an injury. While City University has a duty to maintain reasonably safe premises, such does not place CUNY in the position of being an insurer.
Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977). In order to recover, claimant must prove by a fair preponderance of the credible evidence that his accident and any resulting injuries were caused by the University's negligence (PJI 1:23). Negligence will obtain if the defendant created a dangerous condition that caused the injury or if it had actual or constructive notice of a dangerous condition (that it did not create). Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
No evidence was submitted as to what caused the metal strip to protrude. For example, no evidence was offered that such can result from exposure to the elements for a number of years. More likely than not then, the ajar metal stripping was caused by the actions of a person or persons going through the door. According to Lt. Guy Lovell, 10 to 13,000 persons use the doors on a normal class day. Given this large volume of traffic, it cannot be concluded that the defendant created (or perhaps exacerbated) the loose metal stripping.

As to notice, Mr. Usmani testified that he mentioned the piece of metal one time only - - to Lt. Lovell some six weeks before his fall:
"I told ...Mr. Guy [Lovell]...that it's very dangerous..." But when Lovell was called to the stand by defendant, the following exchange took place:

Q. ...Do you recall if Mr. Usmani ever told you that there was a problem in any manner whatsoever with the front doors?
A. I don't remember speaking to him about the front doors being a problem.

Lovell backed up his recollection by explaining that if he had received such a complaint, it would be followed up and "[d]epending on the severity, we would block it off or put in a work order to have it fixed."
He added that he was not aware of anyone complaining about the metal stripping on these doors prior to February 13, 1997. For his part, the lieutenant said that he did not personally observe such problem before Usmani's accident; Lovell used these doors 5 to 10 times a day. In that vein, Sgt. Presume responded in the negative when asked, "Now, at any time before this incident did you observe this metal strip bent on the front doors?" And the third officer, Rose, also testified that prior to the accident, he never noticed the metal strip jutting out.
In order to prevail, claimant must prove his case by a preponderance of the credible evidence; where the evidence is evenly balanced, claimant cannot win. With that said, Mr. Usmani falls short of this balance on whether there was actual notice. None of the three officers remembered the protruding metal at any time before February 13, 1997, nor that Mr. Usmani or any of the 10,000 plus daily users of the entrance complained about the metal strip before claimant's accident. Further, there was no written documentation of a single complaint. Therefore, I am constrained to conclude that claimant has not met his evidentiary burden as to actual notice.
Notice will be deemed constructive where a defect is visible and apparent, and had existed for a sufficient period of time to enable the defendant to discover and remedy same before the subject accident. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986). Since to this trier of fact, the three officers who said that they never saw the defect pre-accident, or knew of any complaints thereon, are at least as credible as claimant, Mr. Usmani does not satisfy the Gordon standard on constructive notice.
In view of the foregoing, Muhammad Usmani and Zebun Usmani have failed to prove their case by a fair preponderance of the credible evidence and their claim (no. 97732) is hereby
dismissed. Any motion not previously ruled upon is deemed to have been denied.

March 6, 2003
New York, New York

Judge of the Court of Claims

[1] The claim of his wife, Zebun Usmani, is derivative; therefore, references herein to claimant in the singular will mean Muhammad Usmani.
[2] At time of trial, Lionel Presume had advanced to the rank of lieutenant; but he will be referred to here by his rank as of the date of the accident.