New York State Court of Claims

New York State Court of Claims
LALLA v. THE STATE OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, and COLLEGE OF STATEN ISLAND, # 2013-016-022, Claim No. 119806

Synopsis

Case information

UID: 2013-016-022
Claimant(s): NICOLE LALLA
Claimant short name: LALLA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK, THE CITY UNIVERSITY OF NEW YORK, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, and COLLEGE OF STATEN ISLAND
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 119806
Motion number(s):
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Law Offices of Louis Grandelli, P.C.
By: Ari Lieberman, Esq.
Defendant's attorney: Eric T. Schneiderman, Attorney General
By: Edward J. Curtis, Jr., AAG
Third-party defendant's attorney:
Signature date: July 19, 2013
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This decision follows the liability trial of the claim of Nicole Lalla, in which Ms. Lalla alleges that on February 2, 2011, she slipped and fell because of an accumulation of ice and/or snow on the exterior staircase of Building 2A at the College of Staten Island. Ms. Lalla testified on her own behalf and for its part, defendant called superintendent Stanley Suski.

Claimant testified that on the date in question, she was a student at the college, and that there had been snow the previous evening, ending at approximately 12:00 a.m. on the morning of February 2. Lalla recalled that she left home at about 7:30 a.m. for an 8:00 a.m. class, which entailed a five-minute drive. Claimant said that when she arrived at school, there was slush in the parking lot; she believed that no plows had come through yet, and she saw no one shoveling or plowing, although the streets on her way to school had been plowed.

Lalla said that in order to avoid these conditions, she decided to take a shortcut to her class through Building 2A, an administrative building, although she added that this route also was not shoveled, nor had salt or sand been applied. Lalla testified that while walking carefully to avoid slipping, and after having taken one step up the exterior staircase of Building 2A, she fell on the second stair because of the slush, snow and ice, adding that she was using the handrail at the time. Claimant said that at the time of her fall, no part of the stairway had been cleared, and every step had snow, ice and slush on it. She added that no signs had been placed concerning the condition, nor were any areas roped off.

On cross-examination, claimant again stated that she had been using the handrail at the time of her fall, although defense counsel pointed out that at her deposition, she had said that she was "about to" grab the railing. Claimant then stated that she had revised the deposition transcript in this regard, but defense counsel provided her with her deposition correction sheet, pointing out that she had not in fact made this correction, despite having made four other changes.

Claimant also stated on cross-examination that Building 2A was a busy building, in which the safety department of the college was located. She said that many people worked in the building, and that after her fall, several people came out to help her, including a safety employee.

* * *

Stanley Suski testified that he had been the college's superintendent for more than ten years, with general responsibility for maintenance of the campus, inside and out.

Asked about the procedures for snow and ice removal at the campus, Suski explained that the priority would be to clear the main road, then the stairs and parking lots. For the roads and parking lots, the college uses plows for snow removal. He said that with respect to the individual buildings on the campus, snow on the sidewalks is removed with mechanical equipment, and the stairs are cleared manually by the custodial staff, using shovels and salt.

Suski stated that as to snowstorms, when there is one inch of snow on the ground, he would get a call from the "Public Safety People," after which he would reach out to the supervisors, who in turn would call their staff members to come to work early for snow removal. Normally, in the absence of precipitation, custodians would arrive at 6:00 a.m. Suski added that stairs are periodically inspected and that the priority is to get the buildings "operational" in time for 8:00 a.m. classes.

When asked about February 2, 2011, Suski said that he recalled that there had been snow the prior evening, but he could not recall when it ended or how much it had snowed. He said that staff had been called in earlier than usual in connection with the storm and he recalled that he had arrived "probably" by midnight. On cross-examination, counsel for claimant pointed out that at Suski's deposition, he had stated that he did not recall whether it had snowed on the night in question, remembering only that there had been a major storm after Christmas; Suski explained that after his deposition, he had checked the records and confirmed that he and other maintenance members had come in for the storm.

At his deposition, Suski had indicated it would be "voluntary" for employees to come in early during a storm, while at trial, he characterized their early attendance as "mandatory."

Suski said that during the night of the storm in question, he made rounds and would have observed all the buildings on campus, adding that if something had caught his attention, he would have called a supervisor to have it "cleared up."

As to Building 2A, Suski referred to it as a heavily-trafficked building, noting that the safety department is located on the first floor. He testified that the custodian for Building 2A has salt available, and that in anticipation of any storm, all buildings on campus are given all the snow removal equipment that they could "possibly need," such as shovels and brooms.

Suski was asked by counsel for defendant about the "freeze and thaw cycle," and explained that a stair might be cleared of ice, but following a thaw, would be subject to ice recurring. He added that custodians are alert to this phenomenon, and it is a "joint task" where "many eyes are watching." However, no evidence was presented with respect to the stairs in question or, for that matter, any temperatures cycles (see e.g. Sullivan v State of New York, UID No. 2005-016-078 [Ct Cl, Marin, J., Dec. 22, 2005]).

* * *

The City University of New York (of which the College of Staten Island is a senior college), like any property owner, is under a duty to maintain its property in a reasonably safe condition given the prevailing circumstances (Basso v Miller, 40 NY2d 233 [1976]). But defendant is not an insurer, and to recover, claimant must show that defendant negligently failed to exercise due care. Specifically, it must be determined whether a dangerous condition existed and (if not created by defendant), whether defendant knew or should have known of it with sufficient time to remedy it (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Bernard v Waldbaum, Inc., 232 AD2d 596 [2d Dept 1996]).

In the case of a slip and fall caused by ice and snow, these general principles of negligence obtain. However, the duty to clear a premises of ice and snow must be evaluated in view of the "realities of the problems caused by winter weather . . ." (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]). Thus, a property owner is allowed reasonable time after a snowfall to clear its sidewalks, exterior stairs, etc.

In terms of the timing of the storm in question, claimant testified that the snow had ended at 12:00 a.m. the morning before her approximate 7:30 a.m. accident, and Suski had no specific recollection; claimant did not testify as to the amount of snow at issue, and Suski could not recall. No weather records were offered into evidence by either party (see Sullivan, supra).

As set forth above, claimant testified that no snow removal had been undertaken in the area in question, while Suski testified as to the general snow removal procedures, and also stated that following his deposition, he had confirmed from the records that he and other workers had come in for snow removal on the date in question.

There were some problems with the testimony of both claimant and Suski. For instance, claimant's trial testimony contradicted her deposition testimony that she was not using a handrail at the time of the instance, and Suski's trial testimony as to the early attendance of employees being mandatory during a storm contradicted his deposition testimony that it was voluntary. However, it is claimant's burden to prove her case by a preponderance of the evidence. PJI 1:23 and 1:60. In view of the foregoing, I cannot find that claimant has met her burden.

Accordingly, claim no. 119806 is dismissed. Let judgment be entered accordingly.

July 19, 2013

New York, New York

Alan C. Marin

Judge of the Court of Claims