New York State Court of Claims

New York State Court of Claims

RADOMYSLSKAYA v. CITY UNIVERSITY OF NEW YORK, #2007-036-104, Claim No. 111277


Case Information

Claimant short name:
Footnote (claimant name) :

CITY UNIVERSITY OF NEW YORK1 1.Upon unopposed motion of defense counsel at the commencement of the trial, the State of New York and Baruch College were dismissed from the action as not being proper parties.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
AKIN & SMITH, LLCBy: Ismail S. Sekendiz, Esq.
Defendant’s attorney:
By: Karen G. Leslie, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the court’s decision following a two-day trial on the issue of liability only pertaining to a “slip and fall” claim against the City University of New York.

Claimant, Anna Radomyslskaya, alleges that on June 27, 2005, she was a student at Baruch College in Manhattan, and that she slipped and fell on a wet floor in the 24th Street-Lexington Avenue entrance lobby (the “24th Street lobby”) of the college building (known as the “vertical campus”) while it was raining and she sustained a fracture of her right foot. She alleges she unknowingly encountered this wet condition immediately after she exited the main lobby area of the building through a turnstile which separated the 24th Street lobby from the main lobby. She was walking with a friend toward the 24th Street entrance to exit the vertical campus building. She alleges the college was negligent in that there was no mat or carpet on the wet floor where she fell nor were there warning stanchions (“cones”) to caution of wet conditions. She asserts defendant had actual and constructive notice of the wet and slippery condition of the lobby floor due to the rain but failed to remedy the condition promptly. Claimant also argues in a post-trial memorandum that to the extent mats may have been laid in some portions of the 24th Street lobby but not in others, the college was negligent in failing to “properly control ingress and egress” so that students were directed to walk where mats had been laid or on dry portions of the lobby floor.

Defendant counters there was no showing the college had actual or constructive notice of an accumulation of water where claimant fell for any period of time such that failure to remedy the alleged condition constituted a breach of its duty of care. Defendant asserts that mats and cones had been placed on the 24th Street lobby floor by the time of the accident, maintenance men were working, a janitor had been assigned to mop the areas of bare floor and was doing so at the time claimant fell and “security [was] directing traffic.” Defendant also seeks dismissal based on fact and opinion testimony proffered by claimant’s former physician who had treated her for a history of seizures. Before the incident, claimant had taken herself off anti-epileptic medication which the doctor had prescribed. Based on evidence that claimant had passed out for some time immediately after her fall, the doctor opined she fell because she had a seizure, not because she slipped on a wet floor.

A summary of the testimony to the extent necessary for the court’s findings follows.

* * *

Claimant’s Case

Four witnesses comprised the testimony of the claimant’s case: the claimant herself; Feruza Khan (a friend who was with her at the time), Pedro Jerez (a janitor) and Daniel Muniz (a campus peace officer).

Anna Radomyslskaya

Claimant testified that on June 27, 2005 she arrived at the vertical campus at 2 p.m. and attended a class which lasted until 4:45 p.m. She did not remember what the weather was like when she arrived for class. Sometime after 5 p.m. she was leaving to go home and had walked through the main lobby of the building with her friend, Feruza Khan, toward the 24th Street lobby. A row of turnstiles separates the main lobby from the 24th Street lobby. She was “just looking, walking” when she exited through one of the turnstiles, and a “couple of feet” after exiting, she slipped. Her foot twisted and she fell on her hand and knee. Her knee was wet and this is how and when she realized she had fallen on a wet area of the floor. She said that before her fall she was conscious and alert, but immediately thereafter she was in pain and passed out. She asserted there were no carpets or mats in the area where she fell, and she did not notice any cones in the area either.

Claimant was shown Exhibits 1, 2 and 15–photos taken at the behest and in the presence of defense counsel for illustrative purposes only which show the 24th Street lobby as viewed from the 24th Street entrance area of the building. The photos were not taken at the time of the accident. The photos show what appear to be two pair of rectangular mats placed on the floor, secured there by tape on all sides; the mats which constitute a pair are placed end to end, are fastened to each other, and secured to the floor by tape, each pair appearing to be one long mat. Each pair lies perpendicular (vertically) to the row of turnstiles to which it leads (parallel with the other pair, a space of bare floor between them, leaving larger spaces of bare floor on the outer “shoulder” of each pair); and one long mat lies at the foot of the picture, farthest from the turnstiles, perpendicular (horizontally) to each pair of vertically laid mats and parallel to the 24th Street entrance vestibule doors (doors not shown in Exhibits 1 and 15, but shown in Exhibit 2), with a small space of bare floor between the horizontal mat and the two pair of mats perpendicular to it.

The 24th Street lobby area is framed by a bookstore on the left side and by a sports center on the right side. Claimant testified she exited through a turnstile but could not remember which one. She was shown Exhibit 15 and asked to point to where she fell, and she indicated a spot close to a turnstile near the bookstore side of the lobby. When she was asked whether any of the mats shown in the photos actually were on the 24th Street lobby floor at the time of the accident, claimant pointed to the mat at the bottom of the photos – the single mat shown lying horizontally, farthest from the turnstiles and closest to the set of entrance vestibule doors. She said there was no mat in the area where she fell, and she did not notice any cones nor did she see any maintenance men either.

On cross-examination, claimant reiterated that after she fell she was in severe pain and wanted to sleep. She heard people screaming “don’t let her sleep, don’t let her sleep” but then did not hear anything because she passed out until she awakened. She testified that eventually “they woke me up from it.” She said she remembered hearing one of the officers at the scene saying “there should have been carpets out there.”

Feruza Khan

The testimony of claimant’s classmate, Feruza Khan, supplied additional details. Ms. Khan had taken a final exam that afternoon, and when it was over she happened to meet up with claimant on the street, outside the 24th Street entrance to the vertical campus building. The two then walked around the building to the 25th Street side to get something to eat at a deli. Ms. Khan said it was raining that day but did not remember whether it was raining when she first met up with the claimant. After eating, they left the deli. She said it was raining then and so they re-entered the vertical campus through the 25th Street entrance. She estimated that between twenty minutes to an hour had elapsed from the time she met up with claimant to the time they re-entered the building through the 25th Street entrance. The two walked through the main lobby of the building toward the 24th Street side to exit on that side of the building. Ms. Khan was walking in front of the claimant as they went through the turnstiles to the 24th Street lobby. Ms. Kahn used the turnstile closest to the bookstore. Next, she remembered turning around and saw claimant lying on floor. Although she did not actually see claimant fall because she had walked in front of claimant, she saw that the area of the floor where claimant fell was wet. Claimant’s eyes were closed and Ms. Khan realized she had fainted. Ms. Khan ran to the bookstore to get her friend some water, and after two or three minutes claimant woke up. Claimant could not move. Ms. Khan testified that with assistance from “someone” she moved claimant to a bench. Thereafter an ambulance was called to take claimant to a hospital.

On cross-examination, defense counsel pressed whether she would describe the wet floor as “puddles” as opposed to “a light film” (the latter being what defense counsel asserted Ms. Khan had told defendant’s investigator). She rejected both descriptions, and testified “I’ve never seen water like that, if I go inside a building and it’s raining, I don’t see that amount of water on any floor.”

Ms. Khan testified there were no mats at all on the lobby floor. She did not see any cones or maintenance men either. She saw a security guard who was approximately fifteen feet away at a security desk adjacent to a handicapped entrance/exit gate on the sports center side of the 24th Street lobby. She said there were “a few” people at the place where and when the accident occurred.

Pedro Jerez

Claimant called Pedro Jerez, a janitor at the vertical campus building. He testified he saw a “young lady” fall “outside of the carpet” in the 24th Street lobby of the building. At that time, he was “drying the floor outside of the carpets” with a mop. According to Mr. Jerez, it was raining when the accident occurred and had been raining for twenty minutes. People were getting the area wet with their umbrellas. He saw that “a portion” of the lobby area was wet prior to claimant’s fall. He started mopping “the moment it started to rain when people were coming in,” but he did not look at what time he started. He was mopping because his supervisor had directed him to mop in the area not covered by carpets. No time was established as to when his supervisor had given him this instruction.

Mr. Jerez was shown Exhibits 1, 2 and 15 and asked whether the mats shown in those pictures accurately depicted the mats which were on the lobby floor at the time of the accident. He answered no. According to Mr. Jerez, the mat shown in the picture as having been placed horizontally and perpendicular to the mats shown as lying vertically and parallel with each other was not there. He explained this was because there were only two, longer mats placed vertically on the floor at the time of the accident, each extending all the way from the 24th Street entrance vestibule doors to the turnstiles, so there was no need for a horizontally placed mat to cover the area as shown in the bottom of the picture. In response to questions from the court for clarification, Mr. Jerez explained the college has mats of different lengths, and on the day in question longer ones were on the floor. Mr. Jerez’s testimony contradicted claimant’s observation that the only mat on the floor at the time of the accident was the horizontally placed one closest to the entrance vestibule doors; and it also was contrary to Ms. Khan’s observation that no mats at all were on the 24th Street lobby floor.

Mr. Jerez was asked both on direct and on cross-examination to identify where claimant fell. He said she fell on the sports center side of the 24th Street lobby (as opposed to the bookstore side testified to by the claimant and Ms. Khan). On cross-examination, he was shown Exhibit V, another photo of the 24th Street lobby and was asked to mark two places on the photo, one with an “A” where he said claimant fell, and the other with a “P” where he said he was mopping at the time. In both instances, he placed marks on the sports center side of the photo, reflecting that claimant fell on a shoulder area of bare floor, just beyond the vertically placed mat closest to the sports center. His mark was close to where he said he was mopping. In response to defense counsel’s question, he denied claimant had fallen on the bookstore side of the lobby. The photo also showed a cone as having been placed on the shoulder area of bare floor in the space between where he said claimant fell and where he said he was mopping. Mr. Jerez testified this was an accurate depiction of where the cone was at the time of the accident.

Mr. Jerez estimated there were approximately 80 people in the 24th Street lobby at the time he was mopping. He said there was a lot of traffic due to the changing of classes. “Because with so many people, they don’t fit inside the carpets,” people walk on the outside of the mats, he said.

Mr. Jerez testified that on the day of the accident he worked the 3-11:30 p.m. shift. At about 3:10 p.m. he met with his supervisor, Mr. Isaac Nelson, who told him he had checked the weather report for that day and they would have to place mats at the 25th Street entrance lobby of the vertical campus building, as well as signs on both the 25th and 24th Street lobbies of the building. He said Mr. Nelson told him he did not have to place mats on the 24th Street lobby floor because “they were already on.”

On cross-examination he was shown a photo (Exhibit A) depicting mats and cones on the floor of the 24th Street lobby. He testified he put cones down on the 24th Street lobby floor in the same places as depicted on Exhibit A (he also explained he was the one who placed the cones for purposes of the photo which was taken at the behest, and in the presence, of defense counsel based on his recollection of where he allegedly had placed them on the day of the accident). “The rule is that we have to place them in areas not covered by carpet,” he explained. Mr. Jerez said he put down the cones 20-25 minutes before it started to rain. Exhibit A shows 4 cones, three of which are on areas of bare floor, one to the farthest right of the vertical mat on the shoulder of the sports center side of the 24th Street lobby, one to the farthest left of the vertical mat on the shoulder of the bookstore side of the 24th Street lobby, one between the two vertical mats and the fourth directly on top of the vertical mat closest to the sports center side.

Mr. Jerez said he had not placed down mats on the 24th Street lobby side of the building because, according to him, they already were there.

Daniel Muniz

Claimant also called Daniel Muniz, a campus public safety officer (since elevated to the supervisory rank of sergeant sometime after the accident) who also is an EMT. Mr. Muniz started his shift at 3 p.m. in another Baruch campus building on 17th Street. After consulting his memo book to refresh his recollection of the times involved, he testified that when he arrived at the 24th Street lobby of the vertical campus building, he observed “wet conditions” in that lobby because it had been raining (he did not know when it started raining). No mats were down on the floor and he saw “one or two” people slipping, but not falling, on the floor of the 24th Street lobby side of the turnstiles (although he could not pinpoint the precise location where they had slipped). He initiated a call at 5 p.m. to the Building and Grounds (“B&G”) supervisor for that day, Martha Hewitt. He said he notified her of the wet conditions in the lobby and requested that mats be placed in the lobby. He testified he told her there was a need for “additional resources in that lobby... because of the weather.”

This was at the beginning of an approximate half-hour time period when there is a “rush” of students, that is, hundreds heading for their next scheduled classes as they converged with students leaving classes which just finished. After Mr. Muniz made his call, he stayed in the 24th Street lobby. Although it was not part of his job, he began placing cones on the lobby floor in areas of entry and exit and in the locations near the bookstore and the sports center. He explained the purpose of the cones was to warn students of the slippery conditions. He explained, “if I see something wrong, I’ll try to correct it. If I see it just started to rain and it wasn’t raining earlier, and the cones are not out, I will place the cones myself.” He said he also began cautioning people “out loud” about the wet conditions as they entered the building from the 24th Street entrance “because the cones I placed were not sufficient.”

Mr. Muniz testified no mats are permanently placed down on the 24th Street lobby in the sense of their being glued or screwed to the floor; nevertheless, sometimes they are on the floor while at other times they are rolled away and stored close to the turnstiles in a room on the sports center side of the main lobby (shown on Exhibit 15 as having a closed, green door). This was not a time when mats already were down, according to Mr. Muniz.

Mr. Muniz explained that during the rush times of changing classes, the college’s ability to put down mats is impeded. Consulting his memo book, Mr. Muniz said that at 5:15 pm, B&G staff arrived on the scene and started to place mats on the floor of the 24th Street lobby. Because there was a rush at the time, “it more than likely delayed them placing them down quickly.” After B&G workers arrived to respond to his call, he moved to the other side of the turnstiles, beyond the 24th Street lobby to the main lobby side of the turnstiles, where he began redirecting the flow of exiting “traffic.” He pointed to a spot on Exhibit E where a solitary cone is depicted and said this was where he had positioned himself. He said he directed people walking from the main lobby to exit through turnstiles so they would avoid where the maintenance staff was “placing” the mats in the 24th Street lobby. On cross-examination he elaborated: “So there’s two things really going on. . . .I’m helping students with the traffic, and I’m also trying to assist the custodians, preventing those students from hindering or from getting in their way.” At some point in his efforts, he opened the handicapped entrance/exit gate adjacent to the turnstiles near the sports center side so the mass of crowd would flow “at my direction” to that “one portion of the lobby . . . [w]hile B&G were placing mats. . . . not to disturb the custodians. Not to trip over the mats while they were placing them.” He said he also placed cones there to direct traffic toward that exit and “caution[ed] the people that the floors were wet.” Others who had entered the vertical campus building and were walking from the 24th Street lobby to enter the main lobby were using the turnstiles, swiping their ID cards, as he endeavored to direct those exiting the main lobby away from that area.

By 5:50 p.m., according to Mr. Muniz, the B&G staff was “still working on the mats.” He received a radio call for EMT to respond to a slip and fall in the 24th Street lobby. When he got the call he still was “gearing” the exiting traffic to flow through the handicapped entrance/exit. Because Mr. Muniz had positioned himself just past the turnstiles on the main lobby side, he was only a “couple of feet away” when he received the call. He was able to respond in seconds to the scene of the accident on the 24th Street lobby side of the turnstiles.

When he reached the immediate scene of the accident, he found claimant on the floor, being assisted by her friend and complaining of pain. Later, he memorialized the scene in an incident report he prepared: “Aided slipped and fell while entering the building lobby. During this time the B & G custodial [maintenance] staff was placing rugs in the lobby due to the weather. Caution signs were posted.” Mr. Muniz was asked at trial to elaborate on his written report, and in doing so he gave a number of descriptions of his recollections at the scene. He could not recall whether the mats shown in the photo as Exhibit 2 were the way they were at the time he came on the scene. He said when he arrived he saw mats had been placed in the “area” where claimant fell. By this he said he meant the 24th Street lobby. When pressed to clarify, he added the mats had been set in certain locations and B&G workers were working in “another area of the lobby placing carpets,” but he said he could not recall which portion of the entrance lobby they were working in at the time, nor could he recall the position of the mats which already had been placed. “They were actively in the area working on the mats . . . either placing them, adjusting them, or the finishing is adding tape so that the corners don’t roll up.” “They were just finishing placing mats in the lobby.” He was asked whether the sum of his testimony was that he saw they were in the process of “laying some mats” but he did not know which ones were being laid at the time of the incident, and he answered, “correct.” He also said he believed the cones he saw in the area were the ones he had placed himself after he called B&G to say that mats were needed.

On cross-examination, he explained that although he wrote in his incident report claimant slipped and fell “while entering” the lobby, he really did not know whether she was entering or exiting. He assumed claimant was entering because she did not fall where he had been standing “on the other end” as students exited through the handicapped entrance/exit on the sports center side at his redirection.

Defendant’s Case

Defendant was satisfied in the main to rely on the testimony elicited from claimant’s witnesses on direct and cross-examination. On defendant’s direct case, it called as both a fact and expert witness Dr. Richard Lechtenberg, Board Certified in Neurology.

Dr. Lechtenberg had treated the claimant since October 2003 for complex partial seizures characterized by absence attacks, that is, periods of interrupted consciousness after which she was very tired and felt compelled to go to sleep and generally could not remember anything occurring during the attack. He prescribed two anti-epileptic medications, Lamictal and Neurontin and had progressively increased her dosages. She failed to take these drugs consistently despite his warnings to her about the problems missed medication causes. According to the claimant’s testimony on cross-examination, her seizures had become less frequent and she made fewer visits to the doctor. The most recent seizure of which she had informed Dr. Lechtenberg was in March 2004. The last visit she had with him was in January 2005, five months before the incident. He testified he assumed she was not taking Neurontin at that time based on her blood test results. Claimant admitted on cross-examination that despite the doctor’s admonition that she continue her medication, she “eventually” took herself off the drugs.

Dr. Lechtenberg opined within a reasonable degree of medical certainty that claimant’s slip and fall was caused by her having had a complex partial seizure, not by a wet floor. The basis for his opinion was that because she was not taking her medication she was at serious risk of having seizures at any time, and her description of feeling the need to sleep was consistent with her past behavior pattern following her episodes of altered consciousness. “She had a loss of consciousness and a fall, just as I was expecting....She was a seizure waiting to happen, it happened.” When pressed by the court to explain, assuming she did have a seizure, how he could opine it occurred before she slipped and fell and not immediately after she fell, he said this was improbable. He relied on a mathematical probability analysis of someone both falling in the lobby at that time and also having a seizure thereafter, as opposed to her just seizing–especially given her history of seizures and her failure to take the medication. The probabilities of her just seizing were far greater, he said. He also asserted there was little correlation between the emotional stress associated with an ankle injury from a slip and fall resulting in a subsequent seizure, but did allow as how “a very profound acute stress”– which he associated with breaking a leg or a femur, or severing the femoral vein–could increase the chances of producing a seizure to “50-50" in a person with an underlying seizure disorder. He also opined, over claimant’s objection (as to which the court reserved), that his reading of the x-rays of claimant’s foot taken at Cabrini Hospital, and the radiologist’s report pertaining to those x-rays, did not support a conclusion that she had suffered a fracture of the fourth metatarsal, but rather showed she had an old fracture of part of a toe which had not occurred that day.

The court’s findings of fact and conclusions of law follow.
* * *

A building owner has a duty to use reasonable care to keep his property in a reasonably safe condition. In a slip and fall case, claimant has the burden of proving the premises were not reasonably safe; defendant was negligent in not keeping them in a reasonably safe condition; and defendant’s negligence in allowing the unsafe condition to exist was a substantial factor in causing claimant’s injury. PJI 2:91.

The existence of a wet entranceway or floor of a building caused by rain water being tracked into a building, by itself, is not sufficient to impose liability on a building owner unless it is shown that the owner “failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions.” Miller v Gimbel Bros., 262 NY 107, 108-109 [1933]. See also Ruck v Levittown Norse Assoc., LLC, 27 AD3d 444, 445 [2d Dept 2006]; Kovelsky v City Univ. of N.Y., 221 AD2d 234, 235 [1st Dept 1995].

Where a defendant has notice that an area has become so wet from the rain as to be dangerous, yet fails to remedy the condition to make it safe, defendant may be held liable. Pignatelli v Gimbel Bros., Inc., 285 App Div 625, 627 [1st Dept 1955], affd 309 NY 901 [1955]; Keir v State of New York, 188 AD2d 918 [3d Dept 1992] (“Claimant was required to show that the State ‘failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions’ ”) (Citations omitted).

Once there is a finding that defendant was negligent and this contributed to causing the accident, the court may consider whether the claimant also was negligent and contributed to causing the accident; and, if so, what percentage of the fault is chargeable to each. PJI 2:36. “[A] plaintiff has the duty to use reasonable care to observe his or her surroundings.” Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995] (plaintiff held 40% responsible for slip and fall on a wet spot because she did not look at the supermarket floor in front of her as she proceeded to exit from the check-out counter). See Rothstein v City Univ. of N.Y., 148 Misc 2d 911, 917 [Ct Cl 1990] (claimant held 20% responsible because “a reasonable man would recognize that dark theater steps require a heightened level of attention in order to be transcended safely; a level we do not believe claimant employed.”). The burden of proof with regard to claimant’s negligence rests with the defendant.

Applying these legal principles to what occurred here, the court finds claimant has proved by a fair preponderance of the credible evidence that defendant was negligent in that: defendant failed to keep the 24th Street lobby floor in a reasonably safe condition after it obtained actual notice the lobby area where claimant slipped and fell at 5:50 p.m. was unsafe to walk on, the floor having become dangerously wet from rain water tracked into the building during the rush by student traffic and wet umbrellas; the water had been accumulating on the 24th Street lobby floor since at least 5 p.m. (50 minutes earlier) when Mr. Muniz witnessed two people slip on the 24th Street lobby floor after which he called B&G for assistance to remedy the hazardous condition; defendant allowed the unsafe condition to continue to exist for an unreasonably long period of time, because by 5:50 p.m. no mat had yet been laid down on the bookstore side of the 24th Street lobby nor had that area been cordoned off (or, at the very least, been mopped continually until workers could turn their attention to it); by Mr. Muniz’s own admission, the cones he placed in the 24th Street lobby were “not sufficient,” without the placement of mats, to address the danger posed under the circumstances; and this negligence of the defendant was a substantial factor in causing claimant to fall and sustain her injury.

The court also finds there is sufficient evidence to sustain defendant’s burden of proof that claimant, too, was negligent and contributed to causing the accident in that: claimant failed to use reasonable care to observe her surroundings in either or both of two instances which contributed to causing the accident. First, Mr. Muniz had stationed himself on the main lobby side of the row of turnstiles, toward the center of the row, to redirect exiting traffic to the sports center side of the 24th Street lobby through the handicapped entrance/exit (where it may be reasonably inferred workers already had laid a mat and where Mr. Jerez was mopping the bare shoulder to keep it dry); Mr. Muniz also had placed some cones on the main lobby side of the turnstiles to help gear the traffic flow to the sports center side as he warned people of the wet floor they would encounter on the other side of the turnstiles; the court finds that claimant, who said she was “just looking, walking,” either did not pay sufficient attention to what Mr. Muniz was trying to do, or ignored his efforts and exited on the bookstore side of the turnstiles to the area of wet floor which had not yet been addressed by the B&G workers. Second, even if Mr. Muniz somehow may have been obscured from claimant’s sight and hearing by the students exiting on the main lobby side of the turnstiles (after Mr. Muniz’s testimony, claimant did not seek to demonstrate that she was situated in a position where she could not see or hear him), the court finds she also failed to observe what Ms. Khan described as an exceptionally large amount of water on the lobby floor where she fell (“I’ve never seen water like that, if I go inside a building and it’s raining, I don’t see that amount of water on any floor”) and which she should have seen as she approached the turnstiles to exit had she been using reasonable care in observing her surroundings in the lobby area at that rainy time.

The court having found both defendant and claimant negligent in contributing to cause the accident, the court apportions the fault between claimant and defendant as follows: sixty-five (65) percent charged to the defendant; and thirty-five (35) percent to claimant.

Certain aspects of the evidence as they pertain to the court’s findings are addressed below.

The court credits the testimony that both claimant and Ms. Khan exited the main lobby through turnstiles closer to the bookstore side and that claimant slipped and fell on the bookstore side of the 24th Street lobby. The court credits the testimony of claimant and Ms. Khan that no mats had been laid in the area where claimant fell (Ms. Khan testified she saw none at all in the 24th Street lobby, while claimant said she saw a mat which lay horizontally at the end of the lobby closest to the 24th Street doors). The court rejects as unreliable the testimony of Mr. Jerez in these respects. He said claimant fell on a shoulder of bare floor on the sports center side of the lobby, close to where he was mopping at the time, just to the outside of a mat which he said lay vertically to the turnstiles on the sports center side. This mat, he said, was one of two, long vertically laid mats in the 24th Street lobby, the other laying on the bookstore side. This testimony simply does not add up in light of Mr. Muniz’s testimony and other aspects of Mr. Jerez’s.

Mr. Muniz’s testimony regarding where claimant fell is consistent with that of claimant and Ms. Khan. He said claimant fell on the side of the 24th Street lobby opposite to where he had been directing traffic to exit through the handicapped entrance/exit. The only witness who said claimant fell on the sports center side was Mr. Jerez. Also, the pen marks Mr. Jerez made on Exhibit V, a photo of the sports center side of the lobby, to show the position of the claimant at the time she fell relative to where he said he was mopping makes little sense. His mark for claimant, “A,” appears almost next to his mark of where he was standing, “P”. Were this the case, claimant would have been virtually side-stepping a cone and walking directly into Mr. Jerez. His other assertion, that a mat already had been laid on the bookstore side of the 24th Street lobby, also does not square with Mr. Muniz’s account that there was a need to redirect exiting traffic through the handicapped entrance/exit at the time of the accident. The only reasonable explanation for what Mr. Muniz was doing is that by 5:50 p.m. – fifty minutes after Mr. Muniz’s call for assistance – whatever dangerous condition existed on the sports center side had been sufficiently addressed so Mr. Muniz could endeavor to channel students to walk there, and the dangerously wet condition on the bookstore side of the lobby had not yet been remedied. Otherwise, Mr. Muniz’s attempt to steer traffic from the main lobby away from the bookstore side makes no sense. It also may explain the disparity between the testimony of Mr. Jerez on the one hand, and of claimant and Ms. Khan on the other, pertaining to the number of people in the 24th Street lobby at the time of the accident. Mr. Jerez estimated 80 people were there at the time claimant fell, while both claimant and Ms. Khan said there were only a small number of people (ten, according to claimant) or a “few”( according to Ms. Khan). Because Mr. Muniz was redirecting exiting traffic through the handicapped entrance/exit at the time, and the rush of entering students already had settled in for their 5:30 p.m. classes, it is reasonable to infer that at 5:50 p.m. the bulk of the people in the 24th Street lobby were the ones Mr. Muniz was redirecting through the handicapped entrance/exit on the sports center side. Mr. Jerez, who was mopping on that side, thus would have seen many more people where he was situated than those claimant and Ms. Khan saw on the bookstore side. It also may be reasonably inferred that Mr. Muniz was trying to reduce the flow of exiting traffic to the bookstore side so that B&G workers could more effectively turn their attention to this remaining dangerous area of bare lobby floor.

Other of Mr. Jerez’s testimony also was not persuasive. He testified it started raining twenty minutes before the accident. But Mr. Muniz testified that students were slipping on the wet floor fifty minutes before the accident – testimony contemporaneously supported by notes in his logbook. Mr. Jerez also said that twenty minutes before it started raining, he had placed down cones where they are pictured in Exhibit A. That photo shows cones on both shoulders of two vertically placed mats, and in the bare space between the two. Mr. Jerez said mats already were placed in those vertical positions at the time he placed those cones around them. But Mr. Muniz testified that at 5 p.m., when he saw students slipping on the wet floor, no mats had been laid. If Mr. Jerez’s version that he placed the cones before it started raining were accepted, he would have placed them well before 5 p.m. (contrary to Mr. Muniz’s testimony and the contemporaneous notes of his logbook).

The court is persuaded Mr. Muniz’s testimony was compelling as to the negligence of both defendant and claimant. As to the defendant, bolstered by his logbook notations, Mr. Muniz explained that at 5 p.m., when he saw two students slip on the wet floor, the approximate thirty-minute rush had begun, and he called B&G for the “additional resources” necessary to lay mats. He explained this rush-traffic pattern occurred daily at the vertical campus. It took until 5:15 p.m. for help to arrive at the 24th Street lobby, fifteen minutes after he called, even though workers did not have to go any further than the other side of the turnstiles to get the mats out of a small room shown on Exhibit 15 where they were stored. This was an unreasonably long time to respond to a dangerous rush situation, and it partially helps to explain why B&G workers – impeded by the rush until 5:30 p.m. – still had not finished laying all the mats by 5:50 p.m. During these first fifteen minutes, after Mr. Muniz had actual notice of the danger, he took it upon himself to do what he could to correct what he said was “wrong,” placing cones to caution of the wet conditions and warning students “out loud.” By his own admission, however, this was “not sufficient.” Mr. Muniz said B&G still was working on the mats and “laying some” when claimant fell at 5:50 p.m. This is consistent with the court’s finding, which credits the testimony of claimant and Ms. Khan, that the mat closest to the bookstore had not yet been laid. Mr. Muniz was endeavoring to redirect traffic away from the area, again warning students out loud about the wet condition there.

The reasonable inference to be drawn from all this is that B&G’s response to Mr. Muniz’s call at 5 p.m. was negligently ineffective. The “additional resources” he requested did not arrive swiftly enough, nor in sufficient number or mode of operation. Nearly an hour after defendant had actual notice of the danger, all mats still had not been laid; a large uncovered floor area on the bookstore side of the 24th Street lobby was neither covered nor being mopped; the area on the bookstore side had not been cordoned off; and whatever cones were placed did not adequately address the dangers.

Mr. Jerez’s testimony that at 3:10 p.m. his supervisor told him to place mats and cones in certain areas because the weather report predicted rain supports the inference defendant knew from experience that rush periods of student traffic in the vertical campus building made it more difficult to deal with wet floors at those times. So when defendant obtained actual notice of the danger at 5 p.m., it should have known the situation required more attention in response time, manpower and mode of operation than what defendant devoted to it.[2] That the job had not been completed by 5:50 p.m. – fifty minutes after defendant had actual notice of the dangerously wet condition and twenty minutes after the rush period subsided at 5:30 p.m. – impels a finding that the nature and extent of defendant’s response was negligent.

As to the claimant’s own negligence, Mr. Muniz wrote in his logbook that claimant fell while “entering” the building. At trial, he admitted this was only his assumption because he did not actually see her slip and fall while he redirected exiting traffic from the main lobby to the area opposite from where claimant fell. He assumed she was entering because he concluded that had claimant been exiting she would have done so through the handicapped entrance/exit where he was seeking to direct the exiting traffic. But the court has found claimant and Ms. Khan had exited on the bookstore side of the turnstiles. Although counsel for neither side asked why they did so, the court has found that claimant either did not pay sufficient attention to what Mr. Muniz was trying to do or she intentionally did not heed him.[3]

Even if claimant had proved that she was not in a position to see or hear Mr. Muniz on the main lobby side of the turnstiles, it is clear from Ms. Khan’s testimony that the exceptionally wet floor which awaited claimant on the other side of the turnstiles was capable of being seen, and thus anticipated, by claimant from the main lobby side as she approached the turnstiles had she been paying sufficient attention to her surroundings (“I’ve never seen water like that . . . amount . . . on any floor”). Claimant knew it was raining when she reentered the vertical campus through the 25th Street side of the building, intending to exit through the 24th Street side. Given the wet conditions at the time, had she been paying attention to her surroundings as she approached the turnstiles, at least she should have been able to see one or more of the cones Mr. Muniz had placed on the main lobby side to help him redirect traffic to the handicapped entrance/exit; to see the exiting students moving away from the bookstore side of the turnstiles; to see the students entering the main lobby through the turnstiles on the bookstore side with wet umbrellas; to see one or more of the cones Mr. Muniz and Mr. Jerez had placed in various areas of the 24th Street lobby to warn of wet conditions; and to see the rainwater on the floor which awaited her on the bookstore side of the 24th Street lobby that Ms. Khan described as more than she ever had seen inside a building. Had claimant exercised reasonable care in being aware of her surroundings, she would have been able to anticipate this dangerously wet condition and acted to avoid it, or otherwise compensate for it by exiting more carefully, instead of becoming its casualty. This, too, points to claimant’s responsibility under the Lolik and Rothstein decisions supra.

Finally, the court deals briefly with the fact and opinion testimony of defendant’s sole witness, Dr. Lechtenberg, claimant’s treating neurologist. In opining that her accident was not caused by a dangerously wet floor, but rather by a seizure to which she was prone and allegedly suffered, the doctor resorted to mathematical probabilities when questioned by the court as to the basis of his medical conclusions. His testimony as to the cause of the accident was not persuasive. The evidence may very well point to claimant having had a seizure. But to substantially rely on the laws of probability as to the number of seizure-prone people that both would slip and fall on a wet floor and have a seizure to support an expert opinion to a reasonable degree of medical certainty – especially where two people already had slipped on that floor fifty minutes earlier – is too much of a stretch for this court.[4]

The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability by allocating 65% responsibility to defendant City University of New York and 35% responsibility to claimant.

Any motions not heretofore ruled upon are hereby denied. The Court will set this matter down for trial on the issue of damages as soon as practicable.

December 21, 2007
New York, New York

Judge of the Court of Claims

[2].Claimant’s contention that Mr. Nelson’s afternoon instruction to Mr. Jerez proves defendant negligently violated its own rules and procedures, or customs and practices, with regard to days when a weather report predicted rain is unavailing, however. Claimant provides no evidence this advance directive to Mr. Jerez was in furtherance of a standing rule or procedure generally observed by the school’s B&G department. Also, even if laying out cones and mats in anticipation of later inclement weather was the school’s established policy, the failure to observe it does not necessarily constitute negligence where it can be shown the policy itself goes beyond the prevailing legal standard of care in such instances. Sherman v Robinson, 80 NY2d 483, 489 n 3 [1992] (“Violation of a company's internal rules is not negligence in and of itself, and where such rules require a standard that transcends reasonable care, breach cannot be considered evidence of negligence”). Guaranteeing a dry lobby floor while it is raining outside would fall beyond the reasonable standard of care. See Gibbs v Port Auth. of N.Y., 17 AD3d 252 [1st Dept 2005] (“[Madison Square Garden] did not have an obligation to provide a constant remedy to the problem of water being tracked into a building in rainy weather”).
[3].It does not appear, however, that Mr. Muniz put himself in a position to control all egress to the 24th Street lobby. Defendant had not acted to cordon off the bookstore side (even though it may reasonably be inferred that by 5:50 p.m. this area had been the most heavily trafficked and had become wet with rainwater during the rush period while B&G workers were occupied placing mats in other areas of the 24th Street lobby). Claimant still had the option to choose where in the row of turnstiles she wanted to exit. The record thus does not support a conclusion that Mr. Muniz’s attempt at traffic redirection absolves defendant of the greater share of responsibility under all the circumstances.
[4].Even Dr. Lechtenberg’s analysis of mathematical probabilities elevated the risk of seizure to 50-50 in a seizure-prone individual who suffers a broken leg. The doctor’s testimony that the x-rays and radiologist’s report do not support a conclusion that claimant fractured her foot in the accident, although admissible as coming from a physician, goes well beyond his neurological specialty. The court gives it little weight insofar as the alleged fracture may bear on the level of seizure-causing trauma claimant may have suffered at the time of the accident.