New York State Court of Claims

New York State Court of Claims

CHERKASSKY v. CITY UNIVERSITY OF NEW YORK, #2004-016-073, Claim No. 94787


Claim alleging a slip and fall at Brooklyn College loading dock was dismissed where claimant did not show actual or constructive notice of a dangerous condition.

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):

Alan C. Marin
Claimant's attorney:
Rovegno & Taylor, P.C.By: Louis S. DeSorbo, Esq., Of Counsel
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Leslie Stroth, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 22, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision on liability of the claim of Yefim Cherkassky, which arose from his slip and fall at Brooklyn College of the City University of New York (CUNY). Mr. Cherkassky was employed by CSA Vending as a driver to restock vending machines.

Claimant's route was wholly within the campus of Brooklyn College. On December 5, 1994, he had made two stops at the college and his third was to be at Roosevelt Hall. That day, Cherkassky parked his vehicle in the loading dock (he did not make clear what kind of vehicle he was driving). The photograph that was admitted as claimant's exhibit 1 shows a sign ("Dock 1") easily visible against a brick wall near the front of the photo. The picture illustrates the trial testimony that there were two ways to get to the building platform from the driveway below - - walk up an eight-step stairway or use a concrete delivery ramp that sharply angles back, virtually 180 degrees, toward the top of the stairs.
Claimant proceeded as he normally did on his route, initially going up to inventory the specific vending needs, which included the "amounts of money I need to load the changer."[1]
Because Cherkassky was checking the machines to see what was needed, he went up empty- handed, except for a notebook, and therefore took the stairs.
Claimant went back to his vehicle
and loaded a hand truck with "maybe 25, 30 cases of soda, and 15, 20, 25 cases of stuff, chips, pastries, gums." He said that it was "loaded full" and altogether weighed some 800 pounds, but seemed reluctant to concede that it might have affected his line of sight:
Q . Okay. Was it loaded high, also?

A. It's not so high. You know, but it's my height.

Q. Your height?

A. Exactly.

Q. So to the top of your head.
A. . . . I'm supposed to see top, otherwise, you know, it's unsecured, because it's the stuff with the money.

Cherkassky then proceeded to push the fully-loaded hand truck up the delivery ramp. At the place the ramp changes direction,
"the 180 degree turn, I move[d] the hand truck on the right side with my - - push with my whole body pressure, and I slipped . . . [on] a wet something." It was about 11 a.m., and had not been raining or snowing. Claimant had on a pair of work boots that he always wore.
Cherkassky testified that the contents of the hand truck fell on him, he struck his head and lost consciousness for some period - -
"I don't know for how long, 5, 10, 15 minutes." Claimant never looked down at the ground after he fell (when he came to), but explained that the first time he was aware of any oily substance was in the hospital when he observed a dried substance on his boot and trousers, although he did not convey an independent certainty: "It was oily paint it looks like in my understanding."
The paint shop for the college was attached to the loading dock, but was closer to a second ramp on the other side of the dock. Claimant called to the witness stand two painters, Robert Zawadzki and Kurt Bechlin, the latter having retired by the time of trial. Both were on the scene on the morning of December 5, 1994.

Mr. Zawadzki testified that he was in the paint shop when the accident occurred and did not see claimant's accident. He learned of it when Mr. Bechlin came into the shop and told him to call an ambulance because "Jeff [Cherkassky] had fallen."
After calling the ambulance, Zawadzki went over to the site where he saw claimant lying on the ramp, which he called the carpenters' side of the loading dock. The witness recalled a "white liquid" on the ramp; he did not say or recall precisely where he saw it, especially vis-à-vis Cherkassky. When asked what the liquid was, the witness responded, "I have no idea." He then added, "From my being a painter, I [smelled] it. It was either paint thinner . . . or maybe floor wax or something of that sort. It was a chemical."
Zawadzki continued that,
"It smelled like a paint thinner to me" and responded in the negative when asked if it smelled like gas, kerosene or turpentine, but later said it smelled "like a petroleum-based" substance. Then back to this exchange:
Q. Does it smell similar to what oil-based paint smells like?
A. You could say that, yes.

His former colleague, Bechlin recalls being in the paint shop mixing colors when he heard a "ruckus," went outside and saw someone lying on the ramp near the carpenters' shop and, as noted, went back to the shop to have an ambulance called. Near Cherkassky on the ramp, Bechlin had noticed a white substance in liquid form, but testified he had "no idea" what it was. He added that it might have had a slight odor, a "little funny smell."
Thus, neither Zawadzki nor Bechlin was quite sure of what the white substance on the ramp was.[2]
Not knowing the nature of the substance makes it that much more difficult to determine the source. Moreover, there was credible testimony from Zawadzki that the ramp and the loading dock were used by outside contractors - - which is, of course, what claimant's employer was. Significantly, the two painters did not see the white substance on the ramp before Cherkassky's accident, and there was no evidence of any other actual notice to defendant of the alleged hazard.
The City University, like any landowner is under a duty to maintain its premises in a reasonably safe condition (
Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976)), but it is not an insurer, and that an accident occurred does not necessarily mean the college was negligent (Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977)).
In order for CUNY to be negligent in this case (assuming that the substance or liquid was a dangerous condition), there must be proof that it created the condition, or if not, that defendant had notice, actual or constructive, for a sufficient period of time and failed to remedy it.
Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum, Inc. 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
As per the trial testimony, the source of the substance was unknown, and therefore claimant has failed to show that defendant created the condition. Similarly the testimony yields no suggestion of actual notice. What remains then is constructive notice; was there an ongoing or recurrent problem? See for example,
Uhlich v Canada Dry Bottling Co. of N.Y., 305 AD2d 107, 758 NYS2d 650 (1st Dept 2003); Smith v Funnel Equities, Inc., 282 AD2d 445, 723 NYS2d 194 (2d Dept 2001).
There was no indication that slippery substances on the ramp were an ongoing condition. In fact, no evidence of any previous existence of such a substance, let alone any accidents caused thereby, was presented. Claimant himself was at Roosevelt Hall on a daily basis for two years checking the machines, and would typically need to restock them at least four times a week. Cherkassky's testimony never mentioned any time that he observed paint, oil or grease on the ramp.

Similarly, Zawadzki and Bechlin did not point to a single instance of a prior slippery condition. In addition, Zawadzki explained that
in the paint shop, they had to comply with strict environmental standards in disposing of paint, paint thinner and turpentine to prevent escape or leakage into the ground.
In view of the foregoing, the City University of New York, to this trier of fact, did not create a dangerous condition, nor did if have notice of one. Therefore, Yefim Cherkassky has failed to meet the burden of proving that defendant is liable in negligence for his fall at Brooklyn College on December 5, 1994, and claim no. 94787 is dismissed.

November 22, 2004
New York, New York

Judge of the Court of Claims

[1] It is unclear from this statement and the overall record whether Mr. Cherkassky was speaking of a separate machine that made change, or that each vending machine could take dollar bills and return the proper change.

[2] Page 2 of the Security Incident Report does not add anything here (cl exh 2).