New York State Court of Claims

New York State Court of Claims

MENDELSOHN v. CITY UNIVERSITY OF NEW YORK, #2008-030-017, Claim No. 110237


No liability after bifurcated trial. Claimant alleged she slipped, fell and suffered injury at the marble entrance area to the Graduate Center of the City University of New York [CUNY] - an area she was very familiar with - because of a dangerous slippery condition. CUNY is not required to provide a perfect surface for the public to traverse, but only one that is reasonably safe. To hold that CUNY constantly monitor the weather reports on a summer day, or treat every perceived moist condition as suggesting immediate placement of warning signs, cones and mats would render the defendant an insurer. Every water condition is not a hazard, just as every slip and fall is not compensable. Upon actual notice, occurring only a few minutes before claimant fell, reasonable procedure of placing carpet mats down was in process.

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:
Third-party defendant’s attorney:

Signature date:
June 23, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Joyce Mendelsohn alleges in her claim that at approximately 8:00 a.m. on July 19, 2004 she slipped, fell and suffered injury at the marble entrance area to the Graduate Center of the City University of New York [CUNY] at 365 Fifth Avenue in New York City, due to the defendant’s negligence in allowing a dangerous slippery condition. Trial of the matter was held on January 31, 2008. This decision relates solely to liability.

Ms. Mendelsohn, a 77-year-old retired school teacher, was scheduled to attend the first day of a professional development teaching program for middle school social studies teachers as a presenter at the CUNY Graduate Center on July 19, 2004. She indicated that she was very familiar with the building housing the CUNY Graduate Center both in its earlier incarnation as a department store, and after the conversion to CUNY’s use, and had been there on “maybe 100 occasions” since the conversion to attend meetings organized by The Gotham Center for New York City History. [T-30].[1] She woke up at 6:00 a.m. that day, paying particular attention to the radio weather forecast because the program she was presenting involved leading teachers on a neighborhood history walk, and she needed to determine whether “Plan B”, an indoor lecture, would be required. [T-33]. There was a forecast for rain in the morning, and a possibility of it tapering off later in the afternoon. When she looked out of her 14th floor window she could see that the roof on a nearby building on 35th Street was wet and she said it was raining out.

As claimant left her apartment at 7:45 a.m. for the 8:00 a.m. presentation, she was seasonably dressed for summer, and wore rubber-soled sneakers. She opened her umbrella as she walked out because it was raining, and walked the four blocks from her apartment to the graduate center, arriving at the building at approximately 7:55 a.m. She recalled it had been raining for the entire walk, and her umbrella was open the entire time. There was no particular rush because she had already arranged her materials at the Graduate Center for the presentation. Teachers had been asked to show up by 8:30 a.m. to sign in, and the classes were scheduled to commence at 9:00 a.m. Her own presentation was not scheduled until the afternoon.

When she arrived at the building, she shook her umbrella out, wrapped it up, and put it in her briefcase as she walked up the steps. She entered at the entrance closest to 34th Street, or the southern entrance. She opened the door, walked inside the vestibule, and was walking across the vestibule to the next door into the lobby - she had gotten approximately halfway - when she “took a tremendous slip, fell down to the floor, [and] knocked . . . [her] shoulder on a portion of the wall.” [T-36]. Asked to describe where her attention had been focused when she entered the vestibule, Ms. Mendelsohn said “I was focused on the door straight ahead where I was going to be going into the lobby.” [T-36]. She did not recall anyone preceding her into the entrance, nor did she notice anyone else in the vestibule. The floor was very slippery and wet, a fact she only observed once she had fallen and felt the wet floor. Made of marble, she said the floor was “so slippery that as I walked along the floor I took a tremendous fall and almost twirled slightly around, fell, and then hit my shoulder against the wall and the floor.” [T-38].

After falling and observing the wet floor, she saw that at the “most northern section coming in the door was a worker, a man, and he had carpets across his shoulder.” [T-38]. No cones or warning signs were posted anywhere. The man with the carpets - “Luis” - came over to assist her. She rested on the floor for approximately two to three minutes, testing her condition. Then Luis helped her up by her left arm - her right arm was in “extraordinary pain” - and they walked to the door through to the lobby. She then walked over to the security desk and reported the accident.

Claimant marked a photograph of the vestibule taken from the north facing south to show where in the southernmost area of the vestibule she fell down. [Exhibit C].

Ms. Mendelsohn proceeded to the conference after reporting the accident, refusing the immediate ambulance that was offered. Thereafter, however, she called her own physician, had x-rays and a CAT scan, and it was determined by the orthopedist she was referred to that she had sustained two fractures to her right shoulder.

A maintenance contract between CUNY and Collins Business Services, Inc. [Collins] was submitted as evidence showing the latter’s responsibility for the maintenance of the vestibule area in the period between July 1, 2004 and December 31, 2004, and CUNY’s overall responsibility for contract administration as belonging to the Director of Facilities. [See Exhibit 5; page 59.2].

No other witness testified, and no other evidence other than photographs [see Exhibits 1 - 4] were presented on claimant’s direct case.

Charles Scott, Associate Director of Facility Services at the Graduate Center of CUNY, had no first-hand knowledge of the events of July 19, 2004 but testified generally that he is responsible for overseeing the maintenance of the building, and for servicing the contract CUNY has with Collins. In July 2004, there were three shifts of cleaning personnel. The 7:00 a.m. to 3:00 p.m. shift had three (3) porters and one (1) matron. In order to have contact throughout the day, every porter had a cell phone, enabling anyone in the central office of the Facilities Department on the ninth floor to get in touch with a worker.

In July 2004 there were procedures in place for bad weather, including rainy days. Mr. Scott said, “whenever the weather is bad we protect the lobby by putting down floor mats and caution signs . . . The vestibule area is the main area that gets the mats.” [T-80-81]. He explained that it would be an “automatic” action on the part of a cleaner coming to work on a rainy day for the 7:00 a.m. shift to put the mats down. If rain begins once a shift has begun other scenarios might occur. Generally the security department - whose desk has a view of the weather outside - would simply call the office on the 9th floor and advise of rain, and the porters would be called to come to put the mats down. The mats themselves are stored in a closet approximately ten (10) feet from the vestibule, through doors leading into the recital hall beyond the security desk. [See Exhibit D]. Mats are laid out in front of all the doors from the vestibule to the lobby, even the two single doors that do not have a complementary door to the outside of the building. The mats weigh approximately 25 to 35 pounds each.

Mr. Scott conceded that without checking his records, he would be unable to say who was actually working on July 19, 2004, nor did he himself report for work until the afternoon. Since he began working at the building in December 2002 the procedure had been to lay down carpets on the floor in the vestibule when there was wet weather because it was “potentially slippery.” Laying down carpet mats was a “precautionary measure” to alert entrants to “watch your step, instead of running through the lobby that you shouldn’t take a chance and walk. It is a school.” [T-96].

The weather report certified by the United States Department of Commerce for July 19, 2004 shows that it was misty out at 5:51 a.m., and by 6:51 a.m. the mist continued and there was light rain. [Exhibit G]. The weather indicated at 7:51 a.m. is again mist. [Id.]. According to the report, there was “0” precipitation from 5:00 a.m. and 6:00 a.m. that morning. [Id.]. The hourly precipitation in inches indicated at 6:51 a.m. is “.05” or five hundredths of an inch. [Id.]. Between 7:00 a.m. and 8:00 a.m. the precipitation in inches is indicated as “.03”, which in the verbal terms utilized in the weather key translated as “mist.” [Id.]. There is no specific indication of what weather station beyond the designation of New York, New York, the report reflects.

Luis Anthony Negron, the Collins employee who assisted Ms. Mendelsohn, testified that in July 2004 he was the head porter at the CUNY graduate center, responsible for doing “setups, and cleanups, put out rugs, do setups for events mainly.” [T-124]. When he began work at 7:00 a.m. on July 19, 2004, it was not raining. Thereafter, he got a telephone call that it was raining, and came down to the vestibule to put down the rugs, first removing them from the closet nearby. But for the phone call, he would not have known it was raining because there are not many windows in the building, and he was working elsewhere.

Between the time that he received that telephone call, and the time he went to assist Ms. Mendelsohn he estimated that it had been “a couple of minutes”. He had already laid down “one, two - - four rugs” and was in the middle of the vestibule when she fell. [T-127]. He did not see Ms. Mendelsohn fall, except peripherally as a “shadow.” [T-132]. As was his practice, he had been putting down the rugs, working his way from right to left starting at the handicapped entrance on the 35th Street side of the entrance. He confirmed that no carpet had been laid down in the area where Ms. Mendelsohn fell, and that where she fell was an area that would be ultimately covered by carpet. He claimed at trial that he did not see anyone shake out an umbrella in the area where Ms. Mendelsohn fell just prior to her fall.

After assisting claimant through the lobby door and directing her to the security desk, he returned to his task. Later, Sergeant Miller, the security officer sitting out front, interviewed him. Although he agreed that people often shake their umbrellas as they walk into the building, he said that he had not told Sergeant Miller that he had actually seen someone shaking out an umbrella prior to claimant’s fall, but had rather commented to her generally as to the practice. He confirmed that 8:00 a.m. is a busy time at the entrance to the building, with a lot of pedestrian traffic coming in and out of the lobby. He concurred with the general statement that the floor in the entry vestibule becomes slippery when wet. He confirmed that all the doors leading from the street into the vestibule were functional that day and, just as he had observed Ms. Mendelsohn out of his peripheral vision, he also observed others going in and out, including through the door Ms. Mendelsohn utilized. He could not say one way or the other, however, whether the floor was wet in the area where Ms. Mendelsohn fell.

Sergeant Miller said that she had been a public safety sergeant employed by CUNY for six years at the time of trial. Her job, she said, was to supervise the officers, patrol, and “serve and protect the property.” [T-145]. In terms of general procedure, she said that when liquids are observed on the floor, the area would be cordoned off, the facilities department would be called and that department would “take it from there.” [Ibid.]. If a public safety officer observes that it is raining outside, and further observes that no carpet mats are down, the procedure is to call the facilities department to let them know that it is raining. The vestibule area between the front doors and the lobby doors is 42 feet long and 14 feet wide, she said, based on measurements she recalled observing being taken on a different occasion.

On July 19, 2004 she began her workday at 7:00 a.m. but had arrived at the building between 6:30 and 6:45 a.m. It was not raining when she arrived. When she started her day, she generally concentrated on administrative duties, taking roll call, assigning posts and the like. She testified that she made an entry concerning the weather in her logbook, as was her daily practice, at approximately 7:10 a.m., indicating that there was no rain. She recalled that an event run by The Gotham Center was scheduled to begin at 8:00 a.m. The security desk at which she was stationed directly faces the Fifth Avenue entrance. From her vantage point behind the desk, she was able to see out onto Fifth Avenue. She arrived at the security desk in the lobby that day at approximately 7:30 a.m. after performing her administrative duties. When she looked out to Fifth Avenue - presumably at 7:30 a.m. - it was not raining.

In terms of her observations of the accident, the only thing she saw was Mr. Negron - who had been laying out carpets - assisting a woman who had fallen. The woman then came to the desk on her own, and when Sergeant Miller asked her if she wanted to make a report, she declined, and proceeded downstairs to the Gotham Center event. [T-155]. About one (1) hour later, however, the woman returned and made a report, which Sergeant Miller recorded. [See Exhibit 6]. After Ms. Mendelsohn’s first approach to the security desk at approximately 8:00 a.m., Sergeant Miller went out to the vestibule to look at the area, and included in the written incident report that “the foyer was in fact wet with rain drops . . . ” [Id.]. She also reported a conversation with Mr. Negron that differs from his own recollection, in that Sergeant Miller reports that Mr. Negron said that a person preceding Ms. Mendelsohn into the vestibule “shook a wet umbrella.” [Id.].

No other witnesses testified and no other relevant evidence other than additional photographs was submitted.
Although CUNY has a duty as a property owner or landlord to prevent foreseeable risks of harm, it is not the insurer of public safety. Its duty is to exercise “reasonable care under the circumstances . . .” [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. To establish a prima facie case of negligence generally the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

For premises liability, assuming that CUNY did not create the dangerous condition, a claimant must show that the defendant had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). CUNY has a duty to “act as a reasonable man in maintaining property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Miller v State of New York, 62 NY2d 506, 513, 478 NYS2d 829, 833 (1984); Preston v State of New York, 59 NY2d 997, 998, 466 NYS2d 952 (1983).

More specifically, “. . . to impose liability for an injury proximately caused by a dangerous condition created by weather tracked into a building, a defendant must either have created the dangerous condition, or had actual or constructive notice of the condition, and a reasonable time to undertake remedial actions.” Friedman v Gannett Satellite Info. Network, 302 AD2d 491(2d Dept 2003)[2]; cf. Yearwood v Cushman & Wakefield, 294 AD2d 568 (2d Dept 2002);[3] see also Bernhard v Bank of Montreal, 41 AD3d 180 (1st Dept 2007);[4] Ford v Citibank, N.A., 11 AD3d 508 (2d Dept 2004).[5]

To establish that this duty was breached in the instant case, claimant must prove that a dangerous slippery condition existed relative to water on the vestibule floor, and that CUNY had either created the alleged dangerous condition - clearly not the case here - or had actual or constructive notice of such condition and failed to take “reasonable and appropriate remedial actions under all the circumstances.” See Friedman v Gannett Satellite Info. Network, supra at 492.

It is the claimant’s burden to prove her case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility [see Raynor v State of New York, 98 AD2d 865, 866 (3d Dept 1983)] of the various witnesses and evaluating the evidence, and upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that defendant is not responsible for the claimant’s unfortunate fall and resultant injury.

The testimony of claimant was forthright and credible with regard to the happening of the accident. So, too, however, was the testimony of Mr. Negron and Sergeant Miller. There was no evidence in the record warranting an inference that any wet condition was visible and apparent and existed for a sufficient period of time for defendants to discover and remedy it prior to when remedial action was taken. No earlier reports of a problem were presented, and the personnel responsible for acting - Mr. Negron and Sergeant Miller - acted as required when the observation of rain - versus no rain - was actually made.

Given the time line of the observations of rain by all three witness, even if there was some moisture in the vestibule area where claimant fell, created by water being tracked in from what to all appearances seems to have been an intermittent, light summer rain at most, the defendant acted reasonably and promptly to remedy the situation once it became aware of it. For the most part, it had not been raining at all according to the collective testimony. Claimant’s observations of rain are highlighted at 6:00 a.m. when she woke up, and as she walked from her apartment to CUNY between 7:45 a.m. and 8:00 a.m. By the time Mr. Negron arrived at work at 7:00 a.m., he saw no rain, and would not, therefore, start the precautionary measures called for in rainy weather; nor did Sergeant Miller see rain during her sporadic observations of the outside. When she actually got to her desk at 7:30 a.m. - fifteen minutes before Ms. Mendelsohn commenced her journey to CUNY - it was not raining. There is no constructive notice established here. To hold that CUNY constantly monitor the weather reports on a summer day, or treat every perceived moist condition as suggesting immediate placement of warning signs, cones and mats would render the defendant an insurer. Every water condition is not a hazard, just as every slip and fall is not compensable.

Upon actual notice - established by a preponderance of the evidence as occurring only a few minutes before claimant fell - the procedures in place for placing carpet mats down were reasonable ones, and, indeed, Mr. Negron was in the process of placing such mats when claimant fell. CUNY is not required to provide a perfect surface for the public to traverse, but only one that is reasonably safe.

Additionally, any wet condition here was “readily observable ‘by those employing the reasonable use of their senses . . . (citations omitted)’.” See Persing v City of New York, 300 AD2d 641, 642 (2d Dept 2002). Claimant was very familiar with the entrance area at the school. She said she did not notice any wetness in the marble vestibule, and it was only after her fall that she speculated that it was water that caused her to fall. Again - and this assumes that there was some water in the area - had claimant been employing the reasonable use of her senses, she would have seen something. Her testimony was to the effect that she was looking straight ahead. She was not, therefore, taking appropriate precautions given her familiarity with the vestibule area, and the weather conditions she testified to at the time. Indeed, she did not see anything but the doors ahead, including other entrants to the building observed by Mr. Negron, and Mr. Negron himself, who had started to put down the carpet mats.

Moreover, other than her speculation as to the cause, it is not established what caused her to fall. While marble as a surface is generally thought to be slippery, that propensity alone is not sufficient to establish liability. [See e.g. Waiters v Northern Trust Co. of N.Y., 29 AD3d 325, 326 - 327 (1st Dept 2006), see also DeMartini v Trump 767 5th Ave., LLC, 41 AD3d 181 (1st Dept 2007)].

While it is unfortunate that claimant fell and injured herself, and the Court is sympathetic to the claimant, the mere fact of such accident cannot alone establish the defendant’s liability.

Defendant’s motion to dismiss, upon which decision was reserved at trial, is hereby granted and Claim Number 110237 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are hereby denied.

Let Judgment be entered accordingly.

June 23, 2008
White Plains, New York

Judge of the Court of Claims

[1].References to the trial transcript are expressed as [T- ].
[2]. Triable issues of fact as to whether defendant had constructive notice of the dangerous accumulation of snow, ice and moisture at its entrance vestibule, when it had been snowing and sleeting for at least two hours prior to plaintiff’s slip and fall, and defendant failed to place an additional mat in the vestibule in accordance with its usual practice.
[3]. No triable issue of fact as to whether defendant created or had actual or constructive notice of the wet condition on the lobby floor of its building, when it had been raining heavily, and runners had been placed across the entire length of the marble lobby floor. Plaintiff slipped as she walked toward an elevator after she left the runner. “. . . [Defendant] was not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather.” Yearwood v Cushman & Wakefield, supra at 568.
[4]. Defendant did not have sufficient opportunity to remediate hazard from wet floor during heavy rainstorm. People with umbrellas had entered lobby area minutes before plaintiff, area of accident had been mopped seven minutes earlier; no triable issue of fact as to whether floor matting in lobby inadequate.
[5]. Defendant established prima facie “. . . that it took reasonable precautions to remedy wet conditions on its premises caused by a lengthy rainstorm . . . (citations omitted). In this regard, . . . [Defendant] provided two mats and mopped its lobby floor within one hour prior to the time that the plaintiff allegedly slipped and fell. . . . it ‘was not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather’. . . (citations omitted) . . . [Defendant] demonstrated it had no actual notice of the particular accumulation of water on the floor which caused the plaintiff to fall, and in the absence of proof as to how long this specific wet condition existed, there is no evidence to permit an inference that . . . [Defendant] had constructive notice of the condition . . . (citations omitted).” Ford v Citibank, N.A., supra at 508-509.