|Claimant(s):||SARA LIPSON and LARRY LIPSON|
|Claimant short name:||LIPSON|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the State of New York is the only proper defendant.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Julien & Schlesinger, P.C.
By: Michael Taub, Esq.
|Defendant's attorney:||Eliot Spitzer, Attorney General
By: Leslie Stroth, AAG
|Third-party defendant's attorney:|
|Signature date:||March 6, 2006|
|See also (multicaptioned case)|
This is the decision following the liability trial of Sara Lipson's claim that the State is liable for her fall on a stairway in the Seventh Regiment Armory, where Ms. Lipson was attending an art show. According to its superintendent, Scott Swenson, the armory, which is located on Manhattan's upper east side, serves a number of functions. Multiple national guard units are stationed there; a homeless shelter is situated in its basement; a public restaurant is on the fourth floor; and there are about sixteen art and antique shows each year, which take place on the first floor.
The configuration of the armory when entering the building to go to the first floor exhibition space is as follows: an exterior staircase from Park Avenue ascends to a set of wooden doors, which lead to a landing and then a wide four-step staircase up to a second landing. Straight ahead from the second landing are six glass doors which open to a reception area and then the exhibition space. (Def exhs D-1, D-6, D-7 & D-3).
The stairs outside on Park Avenue are covered with a canopy. Inside, there is a rubber mat on the upper landing (cl exh 20; def exh D-1). The remainder of the route from the wooden doors to (and through) the glass doors is covered with a rug, except for: the mat at the top of the stairs, an exposed wooden area of the floor between the mat and the glass doors, and the subject staircase (exhs D-3 & D-4). The stairs are made of stone and have non-stick carborundum strips on the treads and yellow paint on the vertical risers and step edges. The strips and yellow paint are noticeably, if irregularly, worn.
On Saturday, February 22, 2003, Ms. Lipson, who lived in lower Manhattan, drove uptown to the armory and parked her car in a nearby lot. Lipson(2) testified that she arrived at the armory about a half an hour after leaving her home, or between 10:30 and 11 a.m. She stayed for approximately an hour and a half, going from booth to booth of the exhibitors. When claimant left, there was a line at the checkroom where she went to pick up her raincoat and umbrella - - it had been raining that morning.
Intending to exit the same way she had entered, Lipson slipped and fell on her way out of the building. At the upper landing, on the top of the interior staircase, claimant described what happened:
I started down the stairs . . . [a]nd I slipped . . . My left leg - - foot - - slipped on one of the steps, and I slid forward and landed on the lower landing, on that carpeted landing, on my knees and on my palms.
Continuing on direct examination, this exchange took place:
Q. Now, describe the surface that you landed on.
A. It was wet, and it was that carpet.
Q. How could you tell it was wet?
A. Well, when I got up, I had two big wet patches on my wool slacks, on my knees.***
What occurred here was not, in significant respects, clearly conveyed to this trier of fact. Without questioning claimant's intent to recollect accurately, Lipson simply did not explain what was the cause of her fall sufficiently to prove her case by a fair preponderance of the credible evidence.
Other than claimant, we heard from no eyewitnesses at trial. Lipson, intending to meet a friend later, had gone to the armory show by herself. Claimant stated that there were two people at the top of the stairs who called down, asking if she was okay when she fell; it was unclear if the couple saw her fall. Lipson did not fill out an accident report; nor did she or Swenson testify that her accident had otherwise been reported.
Ms. Lipson's testimony was at times inconsistent with her deposition testimony of March 19, 2004 (def exh C). It also seemed forced in some areas, as in the following exchange on her direct testimony:
Q. And when you fell to the area landing after slipping off the steps, did you look to see what caused you to fall?
A . . . I was on the ground, and I looked back and I saw that the tread was worn on this bottom step. And I said to myself, oh, it was a wet step and that's where I slipped.
Claimant could not, on the stand, recall whether she was holding onto a railing when she fell. Ms. Lipson testified that it was her left foot that slipped, but in her deposition indicated that she did not know which foot it had been. She was also vague on the position of her body after she fell (def exh C, pp 36-37).
Each side put on the stand an expert engineer who testified as to the condition of the steps: Richard Berkenfeld on behalf of claimant and Harlan Fair for defendant. Claimant's principal argument was that the non-skid strips were worn down, pointing to standards and regulations that required uniform nonslippery surfaces.(3) To the extent there was an issue as to precisely where Ms. Lipson fell on the stairs (and the condition of the treads at such place), she alternatively tried to demonstrate a failure of due care because of the slope of the steps; worn away yellow paint; or the spacing of the handrails.
Claimant's expert, Mr. Berkenfeld, visited the site within a month of the accident, on March 19, 2003. Mr. Fair did not go to the armory until nearly two years later, on January 2, 2005. But with Superintendent Swenson testifying at trial on June 28, 2005 that the carborundum strips had not been replaced since he began working at the armory in 1990, it was undisputed that in January of 2005, the strips were at least as worn as they were in February and March of 2003(4) .
The wear varied on the stairs and claimant focused on the wear on the last step and more particularly, in the middle of the center segment between the two handrails. Defendant's engineer conceded that there was some wear throughout, but specific places on the stairs had what Mr. Fair described as severe wear. Even so, claimant could not show that the tread she focused on was sufficiently worn to violate any applicable standard, regulation or accepted engineering practice. Neither expert thought it appropriate to assess the coefficient of friction or measure the height of the strip. Each engineer's opinion was based upon running his fingers over the surface of the last step. Berkenfeld testified that it was smooth and had lost its anti-slip properties. Fair concluded otherwise, and there is nothing in the record supporting one expert's conclusion over the other's. In any event, we do not know the spot on the stairs where claimant slipped and proximate cause was not proven.
The rug and mat were in place at all times, in good or bad weather. Swenson testified that when it rained or snowed and an art show was in progress, he or a member of his staff would check the entranceway and steps more often than usual. He said he would look at the condition of the stairs every day(5) to see if there was any dirt or debris on them. As far as the strips were concerned, in his deposition, Swenson had said that he did not check to see if they were worn down, although he did make sure the strips were intact. However at trial, he testified that as he went "up and down the stairs, I would insure that there is some traction, as well as there is nothing loose or hanging." The superintendent added that when taking the stairs, he was aware or would try to be aware "if I had resistance as my shoe would go up and down the stairs." Swenson commented that "I'm not . . . going to go out there with a micrometer to measure the thickness" of the strips - - but neither did the two engineers.
Swenson added that there had been no complaints about the smoothness of any of the strips and no reported accidents on the stairs. The staircase was used by between one and three thousand persons for each of the art or antique shows.
The defendant State of New York has 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 (Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977)); that an accident occurs does not necessarily implicate liability. Given the history of no reported accidents or complaints, the differing views of the experts on how smooth the strips were, Swenson's daily inspection, and the insufficient precision on where claimant fell and what caused her to fall, I am constrained to conclude that with respect to the non-skid strips, claimant has failed to prove defendant was negligent - - that a dangerous condition existed, of which the State had sufficient notice and did not correct, and that any such failure was the proximate cause of her fall. See 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); PJI 2:12 & 2:70.
In addition to the wear on the non-skid strips, claimant contended there were other dangerous conditions: the handrails were too far apart; the steps sloped steeply; and the paint on the edges or nosing of the steps was worn. The Armory was built in 1887. Structural changes did not have to be made to conform to the much more recent building codes. It was undisputed that the placement of the railings, warning paint on the steps and the non-skid strips were not structural elements and could be made to conform to applicable standards.
However, the steps were structural in nature. The slope of the armory steps was 3%, rather than the 2%, which defendant's expert Fair conceded was the current standard. This was true for each step of the staircase, so that the precise location where Ms. Lipson slipped loses its significance. As a structural element, the 3% gradient was not, strictly speaking, in violation of any code provision. In addition, Fair persuasively maintained that the difference was "very, very minimal" for non-slip purposes, and he concluded that such was essentially counteracted by the wide horizontal tread of 15 inches, as compared to the existing code minimum of 9½ inches. Claimant's testimony on her interaction with the railings was as best vague; and thus there is no showing how the armory staircase spacing of 72 inches, rather than the 66 inches standard was a factor in Ms. Lipson's fall. Moreover, Fair explained that the wider spacing was, from a safety engineering standpoint, compensated for by the fact that the handrails were lined up with the edge of the door.
As for the paint, it was considerably worn away (see cl exhs 2, 3 and 5). The vertical risers were supposed to be fully painted, as was an inch or two at the nosing, including the edge of the upper landing (id.). Again, it is not clear where Lipson fell; portions of the last riser or step were still bright yellow (e.g., cl exh 3). On claimant's case, no nexus was shown between the fading, worn away paint and how and why she fell; in fact, Lipson did not mention the yellow paint in her testimony.***
In view of the foregoing, Sara Lipson has failed to prove by a fair preponderance of the credible evidence that the defendant was negligent and that such negligence was the proximate cause of her fall on February 22, 2003. Claim no. 107702 is therefore hereby dismissed.LET JUDGMENT BE ENTERED ACCORDINGLY.
March 6, 2006
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. Since the claim of Lawrence Lipson is derivative of that of his wife, references in this Decision to "Lipson" will mean Sara Lipson, as will the use of the singular form, "claimant."
3. Claimant's exhibit 23, §304.4 of The Property Maintenance Code of New York State, adopted per 19 NYCRR §1226.1; claimant's exhibit 13, the policy governing the State's armories entitled, Real Property - Operations, Maintenance, and Minor Construction, 14-3.b (11).
4. Given their limited use, I am not persuaded by claimants' argument that Mr. Fair's photographs taken in 2005 should have been excluded, citing in their Brief: Kaplan v Einy, 209 AD2d 248, 618 NYS2d 777 (1st Dept 1994); Melendez v New York City Transit Authority, 196 AD2d 460, 601 NYS2d 489 (1st Dept 1993); Saks v Yeshiva of Spring Valley, Inc., 257 AD2d 615, 684 NYS2d 560 (2d Dept 1999); and Richardson v Rotterdam Square Mall, 289 AD2d 679, 734 NYS2d 303 (3d Dept 2001).
5. Swenson also had duties at the Whitestone Armory in Queens, but testified that he was at the Park Avenue Armory on a daily basis.