New York State Court of Claims

New York State Court of Claims
GAGLIARDI v. THE CITY UNIVERSITY OF NEW YORK, # 2007-016-008, Claim No. 110075

Synopsis

Case information

UID: 2007-016-008
Claimant(s): CLARA GAGLIARDI and ANDREW VANA
Claimant short name: GAGLIARDI
Footnote (claimant name) :
Defendant(s): THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110075
Motion number(s):
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Longo & D'Apice
by: Steven J. Weissler, Esq.
Defendant's attorney: Andrew M. Cuomo, Attorney General
by: Lea La Ferlita, AAG
Third-party defendant's attorney:
Signature date: March 1, 2007
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This is the decision following the trial of the claim arising from the fall of Clara Gagliardi(1) at the College of Staten Island, a senior college of the City University of New York. At the time, Ms. Gagliardi, a teacher in the New York City school system, was also a graduate student at the college.

In the fall of 2003, claimant was taking one graduate English class, which met weekly on Tuesday nights from 6:30 to 9:30 p.m. Early in the semester, on September 30, after finishing her class in Building 2-S, Gagliardi was walking with two of her classmates to leave the building:

I walked from my classroom to the front of the building. I exited the building. I walked down the first set of steps, and . . . [after walking] about six feet . . . I tripped and fell over a raised area of concrete.

The weather had been good all day, and the ground was dry. Claimant recalled that she was wearing sneakers.

Gagliardi indicated that she was on the ground for some period of time (and was in pain), but did not realize what caused her to fall until she went back to look at the area with her two fellow students. Claimant testified that she saw a "raised area of concrete . . . about one inch," adding there was "a gap between two slabs of concrete, and the caulking in between the gap was ripped out and was flattened and smashed on the slab of concrete in front of this gap. It had footprints on it." In addition, she referenced the lack of adequate lighting.

Gagliardi then went home and did not return to the accident site until her class met the following Tuesday. On this day, claimant said that she reported the accident to two security personnel at the college, although there is no written Incident Report until nearly two months later (dated November 25, 2003, cl exh 6).

The five photos in evidence (cl exh 1-5) were taken in December, on a sunny day with the pavement clear of any snow or ice. In addition to Clara Gagliardi, the only other witness who took the stand at trial was Vincent Bono, who in 2003 was the chief superintendent of buildings and grounds at the College of Staten Island.

***

In order for a claimant to prevail on an accident of this kind, she must prove that the proximate cause of her fall was a dangerous condition and that the defendant had notice of the condition (unless it created it). Notice can be actual or constructive; constructive notice will obtain if it can be shown that the condition was visible and apparent and had existed for a sufficient period of time prior to the accident to have been discovered and remedied. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Giuffrida v Metro North Commuter Railroad Company, 279 AD2d 403, 720 NYS2d 41 (1st Dept 2001).

Claimant maintains that there were three problematic conditions - - the uneven concrete, missing caulking and the absence of lighting. I conclude as follows:

- - The uneven concrete slabs were not a dangerous condition.

- - Claimant has failed to prove sufficient notice to the defendant of the alleged defective caulking, even were it a dangerous condition that proximately caused Ms. Gagliardi's fall.

- - Claimant has failed to prove that there was any problem with the lighting in the area.

The Concrete Slabs

Both the Incident Report and Ms. Gagliardi's initial response at trial when asked what happened were cast solely in terms of the uneven heights of adjoining slabs of concrete. According to claimant, the uneven level related to the entire length of the seam between these two levels of concrete, which she estimated at 19 feet.

Two photographs in evidence show the scene from a broader perspective (cl exhs 1 & 3). The entrance to Building 2-S, a modern language building, has four doors opening onto a wide concrete landing that leads to three steps that go down to what Mr. Bono described as a courtyard. The three-step concrete stairway is correspondingly wide with a railing to the left and to the right of center (cl exh 1). At either end of the concrete staircase is a low brick wall extending a few feet beyond the stairs into the courtyard.

Bono testified that the campus was built in 1993. In the broader perspective photos, taken ten years later, it still looks new, cleanly and spaciously laid out (cl exhs 1 & 3). The slabs at the foot of the three steps are a noticeably different shade than the concrete that is next encountered in walking away from the steps, and each slab near the stairs just matches the width of the two adjoining slightly higher slabs which create the edge that Gagliardi complains of (cl exh 3). The low concrete wall ends a few feet before these lower larger slabs reach such edge. To this trier of fact, the arrangement of the concrete signals the pedestrian that one is heading into a different area--from the Building 2-S entrance area to the courtyard.

This is not to say that such is how the concrete surface in the entire area looked in 1993, nor was it intended to be. Mr. Bono conceded that the subject concrete planes were uneven and the condition occurred as the ground below settled. Bono, who walked the campus every day, did not recall noticing these uneven surfaces near Building 2-S prior to the accident, but stated that, in any event, the priority for repair would be cracked concrete, not solid, intact slabs. He noted that the College of Staten Island campus covers 204 acres with 8 miles of sidewalk.

Bono was unaware of any other similar prior accidents, and he explained that he would receive and review incident reports on a daily basis. Nor could the superintendent locate any complaints about the uneven condition prior to September 30, 2003.

Bono had custodial and maintenance personnel on staff, including a cement mason who could do repairs, including a flag repair which would be "usually the width of the sidewalk, roughly five-foot by eight-foot." However, there was no showing that the in-house mason ever did this kind of "repair," and the matter was undeveloped as to what the scope of a project to evenly align these two surfaces would entail.

To the extent that an argument can be made that concrete settles and should be repaired or reconstructed on some periodic schedule, claimant did not call an expert who could have advanced the matter. These large uneven surfaces cannot properly be characterized as a trap or snare. See, for example, Zalkin v City of New York, 36 AD3d 801, 828 NYS2d 485 (2d Dept 2007).

As the Court of Appeals has held: there is no minimum dimension test that a condition must satisfy in order to be considered dangerous and therefore actionable; it is generally a question for the trier of fact, given the "facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the 'time, place and circumstance' of the injury . . . " Trincere v County of Suffolk, 90 NY2d 976, 978, 665 NYS2d 615, 616 (1997) (citation omitted).

Given the particular facts and circumstances obtaining in this matter, the uneven concrete surfaces did not constitute a dangerous condition.

Caulking and Lighting

Gagliardi's testimony as to the mechanism of her fall was somewhat sketchy, and even on its terms did not suggest a convincing causal link. Moreover, as to caulking and lighting, claimant's testimony lacks credibility. Ms. Gagliardi testified that she did not sign the November 25, 2003 Incident Report (though she offered it into evidence), contending that the Report was not fully accurate as to the level and persistence of her pain and the existence of witnesses to the accident, although she did not complain about the absence of any references to caulking or lighting in the Report.

When shown the photograph that was claimant's exhibit 2, Gagliardi pointed out a small piece of what she said was caulking, and which Bono described as debris.(2) This was a photo taken over two months later. No proof of any notice, constructive or actual, on this alleged piece of caulking was offered. Claimant also testified about a dislodged piece of caulking that was four feet long, but I do not find it credible that such would have remained for a sufficient time without having been removed by defendant's custodial employees.

As for lighting, an injured party might question what could be called the lighting infrastructure -- e.g., the location of lights, their number and wattage. This typically requires an evaluation vis-à-vis a particular regulation or industry standard conveyed via expert testimony. Claimant did not so proceed.

Secondly, one could argue that the existing lighting did not function as it was designed to do; i.e., were an unacceptable number of lights out? In the immediate area of Gagliardi's fall, there were two light stanchions - - one on either side of the concrete steps, a few feet past the low brick walls (cl exh 1). As noted, there was no reference to lighting in the Incident Report, and the absence of lighting was not part of claimant's testimony when she initially explained what happened.

Gagliardi's testimony on the lighting conditions was tentative and defensive. Further, claimant was unconvincing in response to her deposition testimony that suggested there had been outdoor lighting in the immediate area. In any event, Bono credibly testified that the college has an electrical crew that goes out almost every day to change "bulbs and ballasts for any of the heads that are out." Even if bulbs were unlit, claimant would have to show that defendant had notice thereof per the Gordon standard, supra.

***

In view of the foregoing, Clara Gagliardi has failed to prove her case by a fair preponderance of the credible evidence, and the Clerk of the Court is directed to dismiss the claim of Ms. Gagliardi and Andrew Vana (claim no. 110075).

LET JUDGMENT BE ENTERED ACCORDINGLY.

March 1, 2007

New York, New York

Alan C. Marin

Judge of the Court of Claims


1. Inasmuch as the claim of Andrew Vana is derivative of that of his wife, Clara Gagliardi, references to "claimant" in the singular will mean Ms. Gagliardi.

2. At trial, Ms. Gagliardi drew a red circle on the photograph that is claimant's exhibit 2. The marker was not indelible and the red circle has now smudged off. In any event, I viewed claimant's marking both at trial and later in preparing this Decision.