|Claimant(s):||LOUIS DILUGLIO JR.|
|Claimant short name:||DILUGLIO|
|Footnote (claimant name) :|
|Defendant(s):||THE CITY UNIVERSITY OF NEW YORK|
|Footnote (defendant name) :||The court has sua sponte amended the caption to reflect the proper defendant.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Christopher James Patsos, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
by: Ellen S. Mendelson, AAG
|Third-party defendant's attorney:|
|Signature date:||June 9, 2010|
|See also (multicaptioned case)|
This is the decision following the liability trial of the claim of Louis DiLuglio, Jr. that he slipped and fell on a wet floor in the cafeteria of the John Jay College of Criminal Justice on October 18, 2006. At the time, Mr. DiLuglio was in the fall semester of his final year at John Jay, which is a senior college of the City University of New York and thus subject to this Court's jurisdiction.
Claimant testified that on the day in question, a Wednesday, he arrived at the North Hall building of the college some time around noon, or just after. DiLuglio recalled that he then proceeded to the cafeteria on the second floor, arriving at about 12:15 or 12:20 p.m. Claimant said he bought coffee and a croissant, intending to take them into his next class, which was located on the fourth floor of the same building, and scheduled to begin at 12:30. Mr. DiLuglio described what happened next:
When I was exiting the cafeteria, I slipped and fell . . . I was walking out and my right foot came out from behind - - from under me, and I was in the air. My back hit first, then my legs, and then my head and my arms.
Claimant said that he fell inside the cafeteria some five feet from the double-door entrance through which he had entered minutes before. (See the photographs that are claimant's exhibits 2 and 3; he marked the spot where he fell on exhibit 2). DiLuglio had been wearing sneakers and a backpack; he was carrying his coffee in one hand and the croissant in the other.***
The colleges of the City University, while under a duty to maintain their premises in a reasonably safe condition, are not insurers; the occurrence of an accident does not necessarily implicate liability by the defendant. Basso v Miller, 40 NY2d 233 (1976); Mochen v State of New York, 57 AD2d 719 (4th Dept 1977).
The cafeteria at John Jay was operated by MBJ Cafeteria & Vending, Inc. under a contract with the college (def exh A). An issue was raised at trial as to the respective maintenance responsibilities of John Jay College and MBJ, which is unnecessary to decide here because this Court finds that claimant has failed to meet his burden on negligence (even assuming that the acts or omissions of MBJ can be imputed to defendant).
To prove negligence, Mr. DiLuglio must show that a dangerous condition of which there was either actual or constructive notice proximately caused his accident; notice is unnecessary if defendant (or MBJ, as we are positing here) created the dangerous condition. See Gordon v American Museum of Natural History, 67 NY2d 836 (1986).
At trial, representatives of the college and MBJ testified: Elmer Phelon, the college's facilities director; Sidney Grimes, the administrative superintendent responsible for custodial operations who reported to Phelon; and Joaquin Vasques, the president and food service director of MBJ.
Mr. Vasques, who had his office in the cafeteria, testified that two to three thousand students use the cafeteria on a daily basis. The following testimony of Mr. DiLuglio that no one was near him at around 12:15 p.m. on a school day calls into question his credibility:
Q. Okay. Now, when you were walking through those doors that you described, was there anybody walking with you, like next to you?
A. No. No.
Q. Was there anybody that you saw walking ahead of you?
A. No. No.
Q. Was there anybody that you noticed coming behind you as you were walking in?
DiLuglio's testimony was that the floor was wet, but not from a spill; instead, the floor was mopped and smelled of cleaner, "like . . . Pine-Sol, like an ammonia-based cleaning substance." Claimant testified that when he walked into the cafeteria, its floor was "shiny", his sneakers "squeaked" and a worker had a mop: he therefore concluded that the floor was wet. When describing his fall, he did not initially mention that his clothes were wet. It is possible that claimant simply forgot, but to this trier of fact, the testimony, elicited piecemeal, came across as forced:
Q. Okay. Now, as you were on the ground. Did you notice anything about the floor around you?
Q. What did you notice?
A. It was wet.
Q. How did you notice that?
A. The back of my clothes, the back of my pants, my shirt, they were all wet.
As for mopping up as general cleaning, and not in response to a spill, Messrs. Vasques, Phelon and Grimes all testified that such would occur either early in the morning or in the evening - - not at lunchtime when the cafeteria was busiest. But perhaps it was a spill after all, and a mop was used to clean it up. Given that no proof obtained that such condition was created by defendant (or by MBJ), claimant apparently argues that were it a spill, it was the failure to position "wet floor" signs that constituted a lack of reasonable care. The witnesses from both the college and MBJ stated that they had wet-floor signs available for use.
The whole case turns on DiLuglio's testimony. There was no corroboration of any of his testimony; he called no eyewitnesses or notice witnesses. While the fact that an incident report may be ambiguous is not necessarily by itself of significant probative value, here it represents one more blurry piece of a blurry picture. The City University of New York Security Incident Report provides that the incident was reported at 2:25 p.m. and that it had occurred at 2:01 p.m., and in a section entitled "Describe Incident," the floor is described as "supposedly wet" (cl ex 1).
Claimant spent a not insubstantial amount of time trying to show that John Jay personnel
were involved in the cafeteria that day and therefore bore responsibility for his accident. DiLuglio testified - - unconvincingly - - that the individual he maintains he saw with a mop in the cafeteria was wearing the same identifying shirt that a John Jay employee would have been wearing, and he gave a vague description of the woman.
Both Elmer Phelon and Sidney Grimes testified that John Jay employees were not assigned to the cafeteria, except to: mop on the night shift, set up for special events, and strip and wax the floor (which was done twice a year). In addition, John Jay staff would go into the cafeteria in an emergency, when a pipe burst or to repair a broken window or loose ceiling tile, for example. JoaquinVasques testified that it was MBJ's responsibility to clean up spills in the cafeteria, and that there were times when John Jay employees would go to him and ask that his people clean a spill. Vasques did note that he had seen John Jay employees cleaning up spills in the cafeteria, but that they would have been asked by "the student or the person who made the spill, but it would not be from our staff."
The effort to prove the college's involvement that day did not help claimant's credibility, and in fact, such may have been unnecessary; see Thomassen v J & K Diner, 152 AD2d 421, 424 (2d Dept 1989), appeal dismissed 76 NY2d 771 (1990); Rothstein v State of New York, 284 AD2d 130 (1st Dept 2001) and Parsons v City of New York, 195 AD2d 282 (1st Dept 1993).***
The claimant bears the burden of proof; Mr. DiLuglio must establish his case by a fair preponderance of the credible evidence. His case must be more persuasive than defendant's; if the evidence on both sides weighs evenly so that the trier of fact cannot say that there is a preponderance favoring either side, claimant will have failed to prove his case.
Claimant's case as to what was on the floor, how it got there, how long it had been there and whether there had been notice thereof was tenuous and not grounded on sufficiently probative evidence. See Gordon, supra; Schiop v City University of New York, Ct Cl June 1, 2007 (Unreported, Claim No. 108521, UID #2007-016-021).
In view of the foregoing, Louis DiLuglio has failed to prove that the defendant was negligent, and his claim (no. 113201) is therefore dismissed. The Clerk of the Court is directed to enter judgment accordingly.
June 9, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims