New York State Court of Claims

New York State Court of Claims

CHUNG v. STATE OF NEW YORK, #2004-034-015, Claim No. 102465


Claimant sought to recover for injuries sustained as the result of a fall through a plate glass window at the State University of New York at Buffalo. Claimant alleged that glass was scratched and therefore defective. Claim dismissed. Claimant failed to establish that Defendant had either actual or constructive knowledge of alleged defect. Moreover, Claimant failed to establish existence of defect. Testimony of sole witness for Claimant significantly discounted for failure to timely disclose his existence and for obvious bias.

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:
Defendant's attorney:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant has sought to recover for injuries sustained in a fall through a plate glass window at the Amherst campus of the State University of New York at Buffalo. By agreement of the parties liability issues became bifurcated from damage claims, and proceeded to trial on October 25 and 26, 2004. At the conclusion of testimony I reserved decision and allowed the parties until November 30, 2004 to tender post-trial submissions. Now, upon review of the testimony of the four witnesses who were called during the trial, together with the four exhibits introduced into evidence, I hereby deny and dismiss the claim, finding as follows.

The incident in question occurred on February 25, 2000 between 5:30 and 6:00 a.m., in a cafeteria on the first floor of the Richmond Quadrangle, a part of the university's Amherst campus. At that time Mr. Chung would have been a 19-year-old freshman, residing in a dormitory room on one of the upper floors of Richmond Hall.

At approximately midnight on February 24, 2000 Mr. Chung traveled to the cafeteria with a fellow student, Ronald Yu, in order to study. Although the classmate left after a few hours, Claimant worked through the night without leaving the cafeteria. At some point between 5:00 and 5:30 a.m. Claimant stopped studying and approached a small group of students that he recognized. Those students were variously standing or seated in an area of adjoining booths that extended in a row near an exterior wall of the cafeteria. The booths themselves featured rectangular tables with fixed bench-type seating on each side. The exterior walls adjoining the booths included a series of large plate glass windows. The window immediately behind the booth that Claimant approached consisted of a single pane of glass, eight feet in height and six feet wide, and one-quarter-inch thick. It appears that the other windows along the exterior wall in that area were of similar size. A horizontal railing, positioned slightly more than table-top height, extended along the inside of the windows. From the proof it appears that a small gap existed between the window and the railing, and that another small gap separated the railing from the inside edge of the booths.

Mr. Chung recalled that the group of students that he approached consisted of "Jan," "Andy," "Agnes," "Tim," and "Ray," the last of whom he would learn several years later was Raymond Kim. According to Claimant when he first walked over to the group Jan was seated on the right-side of one booth, with her back toward a Coca-Cola vending machine that was located a short distance to their right. Ray was standing in front of the table to Jan's booth. The left-side seat was vacant. Andy and Agnes sat together on the left-side seat of another booth located to the immediate left, such that they faced Jan. Although he could not recall exactly where Tim was positioned as they talked, Claimant believed that he was standing.

When Claimant first approached the group he stood at the end of Jan's booth, to the side of Mr. Kim. After a brief period of socializing he sat down in the vacant seat, facing toward Jan. Approximately five minutes later he repositioned himself, so as to sit with his buttocks on the top of the back of the booth. He found that seating to be uncomfortable, and after another five minutes moved to the far end of the booth, and sat on the railing that ran along the window. No signs advised that he should not use the rail as a seat, and Claimant noted that on earlier occasions he had made similar use of that barrier without incident, and without objection from university personnel. Claimant also testified that he did not observe any scratches on the window behind his booth.

As Claimant moved onto the railing he sat facing inward. Based mostly on a description offered by Mr. Kim it appears that Mr. Chung initially sat with his knees raised, his feet positioned on the table itself, and his hands cupped between his legs. From Claimant's own time estimates he would have remained seated in that position for at least 15 minutes. According to Claimant at some point he then leaned backward against the pane of glass behind him. As he pressed his back against the window the glass shattered into large pieces. Mr. Chung began to fall backwards and tried, unsuccessfully, to grab the railing with his hands. As he continued to fall he turned his body to the left, and dropped a few feet to the ground outside. He felt himself bleeding and asked Mr. Kim to contact Mr. Yu. Both his friend and emergency personnel responded shortly thereafter.

Over Defendant's strong objection Claimant also called Raymond Kim to the stand. That witness's name had not been disclosed by counsel, notwithstanding Defendant's ongoing demand and Claimant's knowledge of the identity of Mr. Kim for approximately one year prior to the trial. The nondisclosure, while not contumacious, cannot be justified on the ground urged, i.e., that Mr. Davis had become substituted as Mr. Chung's attorney following the initial tender of the demand. As Mr. Chung's counsel for the last several years, Mr. Davis should have been aware of the ongoing nature of the discovery demand served by the State, and the commitment by his predecessor to supply witnesses names and addresses when discovered. I also note that Mr. Kim rejected my suggestion that prior to offering testimony he meet briefly with Mr. Miller, in Mr. Davis' presence, to discuss his recollection of the incident. That factor weighs strongly on the questions of bias, particularly in light of Mr. Kim's several telephone contacts with Claimant in the year prior to his testimony, and his willingness to meet with Mr. Davis prior to the trial. It is also significant that the witness traveled across the State to testify without subpoena, through voluntary arrangements with Claimant and his attorney. While I will decline the Defendant's renewed request to strike Mr. Kim's testimony on the basis of nondisclosure, I will significantly discount aspects of his testimony in light of his obvious bias, and the otherwise incredible nature of his recollections in several key respects.

My principal difficulty with Mr. Kim's testimony concerns the defects that he purportedly observed in the glass pane as he socialized that morning with his fellow students. The witness recalled observing two scratches in the window: a one-inch scratch located approximately one foot above the railing, and to Claimant's right as he sat against the window prior to the incident; and a deeper two-inch scratch, positioned midway between the railing and top of the window, and located to Mr. Chung's left. The witness made no reported mention of the scratches to the other students during their conversation, or to those students or emergency personnel after the incident. Indeed, it appears that his first mention of those two observations did not occur until three to four years following the accident, in a conversation with Claimant in anticipation of this trial.

The witness also failed to explain why the scratches would have been noteworthy in the first instance. His precise recollection of their existence, with descriptions of specific location, dimension and comparative depth, appears inconsistent with the casual nature of the gathering, where his attention would have been directed in any number of locations. The potential for defects in the window would only have gained significance after the glass broke. While that incident might have caused an earlier observation to become more important, Mr. Kim never expressed a belief that the scratches caused the accident.

The lack of an articulated reason to make note of the scratches is only one of the impediments to crediting Mr. Kim's testimony on the issue. A second concern is the witness's failure of recollection concerning other aspects of the incident, several of which should have been more significant and memorable than the presence of scratches in a window. Mr. Kim's testimony as to the time of the incident was mistaken by some six hours. He either forgot or failed to observe that Claimant had books with him as he met with the group. His recollections of the positions, and even the identities of the students who were present, as well as the time between Claimant's first contact with the group and his accident, vary significantly from that of Mr. Chung. He also offered a different description as to how Claimant came to sit down, and later move to the railing itself. I understand that in some respects the inconsistencies between the recollections of Mr. Chung and Mr. Kim may reflect errors on the part of Claimant himself. Nevertheless, it is hard to credit a precise remembrance of what should have been a minor matter at the time of observation in the face of more significant failures in both notation and memory.

My inability to credit Mr. Kim's testimony on the issue does not mean that he provided intentionally false testimony. To the contrary, I believe that the witness's statements were sincere, but faulty, and reflective of an underlying bias in Claimant's favor.

In light of the above, Defendant's motion to strike Mr. Kim's testimony has largely been rendered moot.

Claimant also called a professional engineer, George A. Scardetta, to testify regarding questions of causation. Mr. Scardetta, who possessed some experience in the specific area of commercial window construction, testified that the window should not have broken under the pressure described by Claimant in the absence of some defect. He added that scratches such as those described by Mr. Kim would have impaired the integrity of the glass, and thus allowed the incident to have occurred. The witness acknowledged that a larger window would have been more likely to break under pressure than a narrower section of glass, by reason of bowing or torque, and that he never observed the window in question. He also acknowledged that horseplay could have led to the incident, although once again believing that a defect in the glass, most likely some kind of scratching, would have been the cause of the break.

Paul Russo, an owner of a glass installation service under contract with Defendant, also was called to the stand, twice, by Claimant. The witness opined that if the window had broken as someone simply leaned against it, then some defect in the glass would have existed. However, Mr. Russo denied that simple scratches in the glass would have constituted a defect sufficient to enable the window to break in the manner alleged. He also acknowledged that horseplay could have been a cause of Claimant's accident. The witness further testified to a history of repeated prior calls from the university to repair broken windows of various types and sizes, at a number of buildings.

As with all property owners the State owes a duty of care to those who make use of its facilities, namely to exercise reasonable care to maintain its premises in a safe condition in view of the circumstances, accounting for the possibility of injury to others, the seriousness of such injury, and the burden of avoiding the risk (
Preston v State of New York, 59 NY2d 997, 998 [1983]; see Basso v Miller, 40 NY2d 233, 241 [1976]). However, the State does not act as an insurer of the safety of those who enter its facilities (Preston, 59 NY2d at 999). So also, negligence cannot simply be presumed from the mere happening of an accident, and instead must be affirmatively established by competent evidence of a breach of a duty of care (Mochen v State of New York, 57 AD2d 719, 720 [1977]).
Claimant has failed to establish that the State had notice of a defective condition. Even if the Court were to accept Mr. Kim's testimony that two scratches were present in the window, and favor the engineer's claim that a scratch would constitute a defect, Claimant failed to provide any evidence that the university actually knew of the condition, or had constructive notice of that alleged defect. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (
Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Here, there is no evidence regarding the age of the scratches, and I thus cannot conclude that a defect was present for long enough prior to the incident that university personnel should have discovered and repaired the problem in the exercise of due care. The proof concerning Mr. Russo's prior trips to the campus to fix broken windows supports nothing more than a general awareness that windows break, rather than notice of a specific condition that may have caused Claimant's injuries (see Gordon, 67 NY2d at 838; see also Barber v Barber, 255 AD2d 934, 935 [1998] [ common knowledge that glass can break did not constitute notice that glass doorknob was dangerous condition]). Moreover, as previously noted, on the proof I cannot find that scratches had been present on the window in the first instance.
Similarly, I reject Claimant's assertions that I should find the State negligent based upon principles of res ipsa loquitur. Recovery on that basis would necessitate proof of the following: that the event would not ordinarily have occurred in the absence of someone's negligence; that the window was within the exclusive control of Defendant; and that the event was not the result of any voluntary action or contribution on the part of Claimant (
see Ciciarelli v Ames Department Stores, 162 AD2d 996 [1990]). Even if appropriate for review as the trier of fact, I cannot infer negligence from the circumstances. Clearly, Mr. Chung leaned against the glass, and it is possible that his own conduct could have caused the incident in whole or part. His own ease of contact with the window also negates a finding that the instrumentality was within the exclusive control of Defendant. Lastly, from the testimony of Mr. Russo it appears quite possible that a crack or other defect of unknown duration, rather than the scratches identified by Mr. Kim, caused the incident. Even Mr. Scardetta's testimony cannot support an inference that a scratch or other defect existed long enough prior to the incident that the State should have discovered it in the exercise of due care.
Claimant's reliance upon Multiple Dwelling Law § 78 is misplaced. By definition the Multiple Dwelling Law applies to cities with a population of 325,000 or more, together with such other cities, towns or villages whose legislative bodies adopt the same by enactment of a local law or ordinance (Multiple Dwelling Law § 3 [1], [2]). It does not appear that the Town of Amherst has adopted that statute (
see Code of the Town of Amherst, § 83-1-1 [addressing the enforcement powers of the Town's Building Commissioner] and § 83-1-2-1 [addressing the scope of building codes addressed in the local law]). Even if the Town had adopted the Multiple Dwelling Law, the provisions thereof would not apply to the university's construction activities (see Education Law § 375 [3]).
Based upon the foregoing I will deny and dismiss the Claim.


December 15, 2004
Buffalo, New York

Judge of the Court of Claims