New York State Court of Claims

New York State Court of Claims

QUINN v. CITY UNIVERSITY OF NEW YORK, #2008-013-016, Claim No. 106481, Motion No. M-74062


Defendant’s motion for summary judgment is denied, as numerous questions of material fact remain, including whether the Defendant was on constructive notice of deterioration of the chair in question, whether the acts of Defendant’s subcontractor exacerbated its deterioration, and whether Claimant’s expert can establish that the deterioration was so obvious as to place Defendant on constructive notice.

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:
Attorney General of the State of New York
BY: CHERYL RAMEAU, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 17, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


On February 20, 2008, the following papers were read on motion by Defendant for summary judgment dismissing the claim:
Notice of Motion, Affirmation and Exhibits Annexed

Opposing Affirmation, Affidavit and Exhibits Annexed

Reply Affirmation

Filed Papers: Claim; Answer

Upon the foregoing papers, this motion is denied.

This is a motion by Defendant City University of New York (CUNY) for summary judgment dismissing the claim. The claim here seeks damages relating to a fall on September 13, 2000 at approximately 7:35 a.m. by Claimant from a chair located in the cafeteria at the City College of New York (CCNY), a full-time college that is part of the City University of New York. As a result of the fall, Claimant is alleged to have suffered various injuries, including a herniated disc.

The history of this claim is somewhat instructive, as permission to file a late claim was granted in Motion No. M-64923 by Decision and Order filed on July 10, 2002. In Motion No. M-70620[1] I precluded the Defendant from offering any evidence at trial regarding the condition of the chair in question because of the Defendant’s failure to have preserved the chair. The First Department modified that ruling (43 AD3d 679, 680), noting that, although the Defendant was unquestionably remiss, there was no intentional misconduct, and thus precluding Defendant from offering evidence on the condition of the chair was not warranted. Nonetheless, the First Department tacitly suggested that some lesser sanction would be appropriate. Although the specifically referenced sanction, a missing evidence charge (PJI 1:77), seems misplaced in the Court of Claims where there is no jury, quite clearly there was an invitation for the trial court, in the exercise of its discretion, to impose some lesser sanction on the basis of the record before it. I remain mindful of the First Department’s imprimatur as granting the instant motion would obviate a trial record.

The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Summary judgment is a drastic remedy that should only be granted when no material and triable issue of fact is presented (Taft v New York City Tr. Auth., 193 AD2d 503, citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). To warrant summary judgment, “there must be only one conclusion that can be drawn from the undisputed facts” (Sanchez v State of New York, 99 NY2d 247, 254). Every inference that can be reasonably drawn from the evidence presented shall be viewed in the light most favorable to the nonmoving party.

The Defendant utilized the City College Auxiliary Enterprises Corporation (AEC) to contract with Metropolitan Food Services, Inc. (which in turn subcontracted certain responsibilities to Lifespires, also referenced as Life Spires), to take on all aspects of the cafeteria, including cleaning, repair and maintenance. The Defendant references portions of its contract with Metropolitan Food Services (MFS), which purport to place responsibility on MFS for the cleaning of the chairs in the dining room (Exhibit H to Defendant’s motion - p. 37.28, Section N, Sanitation and Safety, ¶8), and for the repair and maintenance of capital equipment, including furniture (Exhibit H to Defendant’s motion - p. 37.28, Section N, Sanitation and Safety, ¶12). That same contract has an indemnification and save harmless clause (Exhibit H to Defendant’s Motion - Section 15, p. 28). The Defendant acknowledges that it “purchased the chairs for the cafeteria at issue,” but presumptuously affirms that “CUNY did not have control over the chairs and was NOT responsible for their repair and maintenance” (Defendant’s Reply Affirmation - ¶4), reiterating its averment in paragraph 16 of its Affirmation in Support that “[t]here is no evidence whatsoever, that CUNY had any responsibility for maintaining, cleaning, inspecting or repairing the chairs in the cafeteria.” Query: May CUNY, the municipal entity which owns the premises, simply contract away any responsibility as a landowner? (See Basso v Miller, 40 NY2d 233.)

In a recent matter, Judge Catherine C. Schaewe considered this issue in Allen v State of New York (UID #2007-044-580, Claim No. 111354, Motion No. M-73657, Nov. 14, 2007):

‘It is well-settled law that an owner or occupier of property open to the public owes a duty to maintain it in a reasonably safe condition to prevent foreseeable injuries’ [citations omitted]. Although an owner or occupant may contract with a third party to provide maintenance services, that owner or occupant will generally remain liable to a claimant for injuries caused by the third party’s negligence in the performance of such maintenance services (see e.g. Salisbury v Wal-Mart Stores Inc., 255 AD2d 95 [1999]).

In that case, involving a complex housing offices of three municipal entities, the State, the County of Broome and the City of Binghamton, she found a rare instance where “a maintenance agreement may be so comprehensive and exclusive that it entirely subsumes the duty of the owner or occupant to keep the premises in a reasonably safe condition, and instead imposes that duty on the party providing the maintenance...,” and where such a truly comprehensive agreement exists, “the obligation is so broad that it entirely displaces the landowner’s duty, and the breach of a safety-related aspect of that contractual obligation is sufficient to impose liability on the third party....” In my view the maintenance agreement in question does not, as a matter of law, approximate those rarified circumstances, particularly when, as here, AEC reserved the right to periodic, unannounced audits, including comprehensive review of safety conditions (Exhibit H to Defendant’s motion - p. 37.29, Section O, Maintenance and Operation, ¶f), and would notify MFS of “conditions needing correction or improvement.”

Part of Defendant’s motion rejects the applicability of the doctrine of res ipsa loquitur, suggesting that it is not applicable to this case because the Claimant cannot establish the element of exclusive control. Indeed, a claimant would have to demonstrate, in addition to other elements not disputed at this time, that the Defendant had control “‘of sufficient exclusivity to fairly rule out the chance that the [alleged defect] was caused by some agency other than defendant’s negligence’ [citations omitted]” (Molina v State of New York, 46 AD3d 642, 643 [2007]).

Loiacono v Stuyvesant Bagels, Inc. (29 AD3d 537), is not to the contrary, and, in a summary judgment motion where inferences are to be viewed in a light most favorable to the nonmoving party, the viability of res ipsa loquitur as a remedy should not be excluded. In Loiacono, id., the plaintiff was injured when the chair she sat on in a bagel shop collapsed, and res ipsa loquitur was held to be inapplicable since those defendants did not have exclusive control over the chair, as the bagel shop had been open for more than six hours before the accident. The Appellate Division seemingly found compelling that “ of the owners of the bagel shop, averred in an affidavit in support of the motion, that many customers sat on the chair before the injured plaintiff did [citations omitted]” (Loiacono v Stuyvesant Bagels, Inc., 29 AD3d 537, 538, supra). There is no such sworn affidavit here. Indeed, this accident occurred at 7:35 a.m., perhaps before any other individual had been observed sitting on that chair after it had been placed back on the floor after cleaning the night before, to wit, an unresolved material question of fact. Thus, it cannot be said, as a matter of law, that “there can be no finding that the chair was within CUNY’s exclusive control” (Defendant’s Affirmation in Support - ¶15).

Moreover, unlike the Loiacono court, where the injured plaintiff raised an issue of fact only as to whether the defendants had a general awareness that a dangerous condition might exist, and which the court found was an insufficient predicate for liability in the absence of notice of the particular condition which caused the fall, Claimant has done more. Here evidence has been presented regarding the age of the chairs,[2] the discarding of perhaps 75 of them due to deterioration, as well as an expert witness’s opinion[3] regarding the rust and other apparent structural weaknesses of the chair. Of course, Mr. Lynch was hampered in examining the actual chair because the Defendant had failed to preserve it, and he relied upon the photographic evidence (Exhibit I to the Affirmation in Opposition).

In Haring v Still Waters Rest., Inc. (18 Misc 3d 1122[A]; 2008 NY Slip Op 50159[U]), an action where the plaintiff was injured when the plastic chair he was sitting on collapsed, Justice Ute Wolff Lally denied summary judgment to the Defendant, albeit rejecting the plaintiff’s expert’s opinion because she questioned his qualifications to express his opinion “regarding the use of residential plastic deck furniture in a restaurant setting.” Secondarily, she noted that the expert’s “theory is not backed up by an inspection of the subject chair, industry standards or any scientific data.”

Defendant here urges me to disregard the expert opinion of Claimant’s expert, Lynch, primarily for his conclusions, and alludes to his report as being outside the scope of his expertise. Mr. Lynch’s training is in metallurgy and material sciences, with his practice including metallurgical failure investigation. His expert opinion is not challenged by the opinion of an expert engaged by the Defendant, and I find that he is sufficiently qualified to offer his opinion at this motion stage. He raises questions of fact with respect to the cause(s) of the collapse of the chair in question, questions that may only be resolved after the rigors of a trial. Moreover, while the chair is not available for inspection, as it was not in Haring, the First Department implied that such absence should not, in and of itself, deprive this Claimant of the opportunity to be heard at trial (Quinn v City Univ. of N.Y., 43 AD3d 679, supra).

There remain numerous questions of fact requiring resolution after trial, including whether the discarding of some 75 chairs prior to this incident placed the Defendant on constructive notice of deterioration, whether the routine placement of these chairs on and off the cafeteria tables on a daily basis (see ¶9 of Defendant’s Affirmation in Support) by Lifespires as a subcontractor of MFS exacerbated their deterioration, whether the rusting and other deterioration can be established through the testimony of Claimant’s expert to have been so obvious as to have placed Defendant on constructive notice thereof, particularly when it reserved the right to conduct unannounced audits, etc. In sum, this matter may not be resolved as a matter of law.

Accordingly, based upon the above and unresolved issues of material fact, the Defendant’s motion for summary judgment is denied. The parties will be notified under separate cover of a calendar call to schedule the trial of this matter.

April 17, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]Quinn v City Univ. of N.Y., UID #2006-013-010, Claim No. 106481, Motion No. M-70620, March 27, 2006.
    (Decisions and selected orders of the New York State Court of Claims are available on the Internet at )
  1. [2]Per the deposition of Joseph Gallopini of MFS (Exhibit F to the Affirmation in Opposition), the chair(s) in question were purchased by the Defendant and were in use by 1990 or 1991. Moreover, the Claimant’s expert, Richard F. Lynch (Exhibit A to the Affirmation in Opposition), in ¶12 of his affidavit, suggests a production date for the chair seat as 1990, albeit with the frame likely manufactured at a different time.
  2. [3]See ¶32 of the affidavit of Richard F. Lynch (Exhibit A to the Affirmation in Opposition).