Opinion
# 2020-053-520 Claim No. 128130 Motion No. M-94851
05-14-2020
PAUL SPATARO v. THE CITY UNIVERSITY OF NEW YORK
THE LAW OFFICES OF FRANK DITO, JR. BY: Frank Dito, Esq. HON. LETITIA JAMES New York State Attorney General BY: Suzette Corinne Merritt, Esq. Assistant Attorney General
Synopsis
Defendant City University of New York's motion for summary judgment is granted as claimant failed to establish any material issue of fact. The claimant sustained personal injuries when a window he was attempting to open at the College of Staten Island fell down on his hands. No evidence was produced to create an issue of fact as to whether the defendant created any dangerous or defective condition or that they had prior notice, actual or constructive, of any defective condition with the window.
Case information
| UID: | 2020-053-520 |
| Claimant(s): | PAUL SPATARO |
| Claimant short name: | SPATARO |
| Footnote (claimant name) : | |
| Defendant(s): | THE CITY UNIVERSITY OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128130 |
| Motion number(s): | M-94851 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | THE LAW OFFICES OF FRANK DITO, JR. BY: Frank Dito, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Suzette Corinne Merritt, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 14, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Paul Spataro alleges in claim no. 128130 that he sustained personal injuries on September 19, 2013, when the window he was attempting to open fell down on his hands while he was attending a Spanish language class at the College of Staten Island (CSI), part of the City University of New York (CUNY). Defendant moves for summary judgment. Claimant opposes the motion. Procedural History
A notice of intention to file a claim was personally served on the Attorney General's Office on December 13, 2013, and personally served on CUNY on December 16, 2013. Claim no. 126768 was filed on September 19, 2015, personally served on the Attorney General's Office on September 25, 2015, and served on CUNY on September 24, 2015. Defendant moved by timely pre-answer motion to dismiss claim no. 126768, as it had not been served within two years of its accrual as required by Court of Claims Act §§ 10 (3) and 11 (a) (ii). Claimant then cross moved for permission to late file a claim pursuant to Court of Claims Act §10 (6). By Decision and Order dated May 25, 2016, the Hon. Thomas H. Scuccimarra granted defendant's motion and dismissed claim no. 126768 and granted claimant's cross motion for permission to late file a claim (a copy of Judge Scuccimarra's Decision and Order is annexed to defendant's motion). The present claim no. 128130 was filed June 28, 2016 and defendant's answer was filed on August 10, 2016. Claim no. 128130 was transferred to my calendar on January 27, 2017. On January 11, 2019, claimant filed a note of issue and certificate of readiness. Factual Background
The claimant testified at his deposition (Defendant's Exhibit D) that he was a student at CSI on September 19, 2013, attending a Spanish class in building 1 South, room 105 (1S-105) when the accident occurred (Defendant's Exhibit D, p. 13). The Spanish class was taught by Sarah Shoshana Pollack (Defendant's Exhibit D, p. 14). According to claimant, his Spanish teacher asked him to open a window. There were two windows in the classroom. When claimant opened the one window, it fell down on his hands (Defendant's Exhibit D, pgs. 15-16).
During claimant's deposition and in the Incident Report (Claimant's Exhibit A), the room where the incident occurred was identified as 1S-105. In the claim (Defendant's Exhibit A) and in claimant's bill of particulars (Defendant's Exhibit C), the room is identified as 1S-115. Based on the deposition testimony and the Incident Report, the Court concludes that the accident occurred in classroom 1S-105. --------
Claimant testified that it was quite possible that he had previously opened the same window or the other window in classroom 1S-105, but he was certain that he had opened other windows at CSI before his accident (Defendant's Exhibit D, pgs. 15-16). Before he lifted the window, claimant testified that he did not notice anything about the window and it did not appear to have any problems. When claimant proceeded to open the window, he placed his hands on the lip of the bottom of the window and raised the window up. After raising the window, claimant "placed [his] hands on the windowsill and peered outside and then the window fell on [his] hands" (Defendant's Exhibit D, p.17). When claimant peered outside, only part of his head went past the glass windowpane. When the window came down, claimant testified that his head was no longer partially out the window, but both of his hands were still on the windowsill. He was able, however, to pull his hands out from the window. As he was opening the window, Claimant did not notice the window sticking or not opening properly, and when he left the window in the open position, he did not notice anything to indicate that it was not sticking in the open position. Claimant did not hear any sounds before the window came down and did not see it happen (Defendant's Exhibit D, p. 24).
Claimant was escorted to the nurse's office where his hands were wrapped. He then drove himself home and later, his mother took him to the emergency room (Defendant's Exhibit D, pgs. 17-21). While at the nurse's office, claimant spoke with an officer from campus safety (Defendant's Exhibit D, pgs. 19-20). While claimant testified that he has been in classroom 1S-105 after the incident, he did not know if the window had been replaced (Defendant's Exhibit D, p. 25).
Sarah Shoshana Pollack is an Associate Professor in the Department of World Languages and Literature at CSI (Defendant's Exhibit E, pgs. 5-7). At the time of claimant's injury, Ms. Pollack testified that she was teaching Spanish 113 in classroom 1S-105 (Defendant's Exhibit E, pgs. 7-8). Ms. Pollack testified that there were two windows in classroom 1S-105. She remembered the window claimant lifted as being heavy and stiff. She recalled seeing claimant trying to open the window. Ms. Pollack further testified that she believed the window went all the way up and then it came down with a crashing noise on claimant's hands. The glass in the window, however, did not break. She immediately called campus security (Defendant's Exhibit E, pgs. 11-13). After the incident, Ms. Pollack reported it to her department chair and to buildings and grounds. When Ms. Pollack next returned to 1S-105, she recalled some kind of warning or sign around the window (Defendant's Exhibit E, p. 14-16). Ms. Pollack testified that she never before had this window give her any type of problem (Defendant's Exhibit E, p. 16). She never opened the window again (Defendant's Exhibit E, p. 18). Ms. Pollack further testified that she never had a window on the CSI campus just fall down on its own, and she had never previously heard of a window doing that (Defendant's Exhibit E, p. 19). According to Ms. Pollack, the windows on the CSI campus are heavy, a little awkward and a little stiff due to the humidity (Defendant's exhibit E, p. 22).
Mr. Keith Pisons, an administrator/superintendent over trades also testified at a deposition (Claimant's Exhibit B). As superintendent, he coordinated the activities of the plumbers, locksmiths, electricians and maintenance people. At the time of his deposition in April of 2018, he had only been employed by CSI for about three months (Claimant's Exhibit B, pgs. 7-8). As such, he had no knowledge of how maintenance work orders were submitted or processed in 2013. In 2018, Mr. Pisons was aware that work orders were archived on an ARCHIBUS computer system. He did not know if that system was in operation in 2013 (Claimant's Exhibit B, pgs. 15-17, 20).
A deposition of George Mallon, Assistant Director of Public Safety, was taken in September, 2018 (Claimant's Exhibit C). According to Mr. Mallon, when an incident occurs, the responding officer writes up a report which is typed up by one of the secretaries in the public safety office and then reviewed and signed by the officer (Claimant's Exhibit C, pgs. 11-14). The incident report for the subject accident is annexed to the opposing affirmation of claimant's counsel, Frank J. Dito, Jr., Esq. as Exhibit A. The incident report indicates that claimant opened a window in classroom 1S-105 and the window came down on his hands. The incident report further indicated that Mr. Mallon submitted a work order and notified the buildings and grounds supervisor, Stan Suski, to have the window repaired.
Mr. Mallon testified that prior to September 19, 2013, he was not aware of any other students, teachers, faculty, or staff being injured by a window in classroom 1S-105 (Claimant's Exhibit C, p. 17). According to Mr. Mallon, when his public safety officers performed their rounds and saw anything that might need attention, like a hole in a sidewalk, they would notify him or call buildings and grounds (Claimant's Exhibit C, pgs. 22-23).
Finally, the deposition of Stan Suski was conducted (Claimant's Exhibit E). Mr. Suski was the superintendent of buildings and grounds at CSI at the time of claimant's accident. He last worked for CSI in March of 2014 (Claimant's Exhibit E, pgs. 6-7). Mr. Suski did not recall the incident involving claimant, nor did he recall seeing the incident report (Claimant's Exhibit A) involving claimant's accident (Claimant's Exhibit E, pgs. 8-9). According to Mr. Suski, someone like Mr. Mallon, could generate a work order which would be sent to buildings and grounds. When a repair was made, the work order would be closed out and a copy kept in a file if it was deemed something that should be kept (Claimant's Exhibit E, pgs. 9-11).
Mr. Suski was shown a series of photographs purported to be of the window in classroom 1S-105. Claimant's counsel directed Mr. Suski's attention to certain photographs showing a bolt in a window, and was asked if that bolt prevented the window from opening. Mr. Suski testified that the bolt was probably a stop gap measure to prevent someone from opening the window. Mr. Suski denied that he had ever placed a bolt in a window, could not recall ever directing someone to install a bolt in a window, testified that it would be conjecture to speculate on who might have installed a bolt, and testified that he did not know if the window in the photographs he was shown was even the window in classroom 1S-105 (Claimant's Exhibit E, pgs. 13-15). Mr. Suski could not recall ever hearing of anyone who was injured by a falling window (Claimant's Exhibit E, p. 16).
According to Mr. Suski, CSI consists of 20 separate buildings. He could not estimate the number of windows and did not believe that there was a process whereby every window was checked. When the State took over the buildings and converted them into a four-year college, Mr. Suski testified that many repairs were made. To the best of his recollection, he believed that the windows were replaced as part of the building repairs. When asked if his department would have conducted any mass upgrades of the windows, Mr. Suski testified that his staff was too small and that major tasks, like replacing windows, would be sent out to vendors and contractors to bid on the job (Claimant's Exhibit E, pgs. 18-20). Decision and Law
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, the motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).
As a landowner, the State has a duty to maintain its 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" (Basso v Miller, 40 NY2d 233, 241 [1976], citing Smith v Arbaugh's Rest., 469 F2d 97 [1972], cert denied 412 US 939 [1973]). At the same time, the State is not an insurer against every injury that may occur upon its property (Smith v State of New York, 260 AD2d 819 [3d Dept 1999]). Where a hazardous or dangerous condition is alleged to exist, the State may be held liable when it created the dangerous condition or where it had actual or constructive notice of the hazardous condition and failed to take reasonable measures to correct the danger (see Friedman v State of New York, 67 NY2d 271, 286 [1986]). Whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 [1997]).
In the present case, claimant alleges that the window in 1S-105 was broken or otherwise defective, and when claimant raised the window, it violently fell down, injuring his hands. In his claim (Defendant's Exhibit A), claimant alleges that CUNY negligently maintained the window. In the Bill of Particulars (Defendant's Exhibit C), claimant alleges that CUNY created the dangerous condition and had actual and constructive knowledge of the condition of the window, alleging that it had existed for a long period of time. Defendant moves for summary judgment, alleging that it neither created a dangerous condition, nor had actual or constructive notice of any dangerous condition.
Defendant argues that no evidence was presented during the course of discovery to suggest that the window in classroom 1S-105 was defective when claimant used it. In her supporting affirmation, Assistant Attorney General Suzette Corinne Merritt alleges that there is no evidence that the accident was not caused by the improper use of the window, i.e., possibly by claimant failing to place the window in the open, locked position before letting it go. Claimant argues that the allegation that claimant did not properly open the window raises a question of fact sufficient to defeat defendant's summary judgment motion. Regardless of whether the window was defective, and assuming, arguendo, for the purpose of this motion only that the window was defective, claimant would still have to prove at trial that defendant created some defective condition associated with the window in classroom 1S-105 or had actual or constructive notice of the allegedly defective condition.
No evidence has been adduced during discovery or in opposition to defendant's motion to even suggest that CSI or CUNY created any dangerous or defective condition with respect to the window in classroom 1S-105. In order to prevail on its summary judgment motion, CUNY bears the "burden to establish the absence of notice as a matter of law" (Pirrelli v Long Is. R.R ., 226 AD2d 166, [1st Dept 1996]).
In support of its motion, CUNY relies on the deposition testimony. There is no indication in the deposition testimony submitted to suggest that CSI or CUNY had actual or constructive notice that the window in classroom 1S-105 would fall down when raised. Claimant did not notice anything to indicate that this window was not opening properly or failing to stay in the open position. Claimant saw nothing wrong with this window and it did not appear to have any problems. Claimant's Spanish teacher, Ms. Pollack recalled the classroom being hot and that the window was a little heavy, a little awkward and a little stiff due to the humidity. Ms. Pollack never previously had this window give her any problem. The deposition transcripts offered by claimant failed to indicate that CUNY had notice of a problem with this window. Mr. Mallon, Assistant Director of Public Safety, was not aware of any other students, teachers, faculty or staff being injured in classroom 1S-105 before claimant's injury. Mr. Suski, Superintendent of Buildings and Grounds at the time of claimant's accident, could not recall hearing that anyone had been injured by a falling window. Here, defendant has demonstrated that it had no actual or constructive notice of any defective condition in the window in classroom 1S-105 or of any window on the CSI campus and claimant has failed to raise a question of fact on the issue of notice (Mele v Golian Realty Co., Inc., 7 AD3d 683 [2d Dept 2004]).
As there was no testimony or other evidence submitted in opposition to defendant's motion for summary judgment to suggest that the CUNY had any prior notice, actual or constructive, of any window in CSI suddenly falling down once opened, claimant cannot establish liability against CUNY for his injuries. To find liability under these facts would render CUNY an insurer of its property.
Claimant attempts to raise a question of fact in opposition to defendant's motion by arguing that there was no process whereby the windows were checked or inspected on a regular basis. According to claimant, the CSI campus is comprised of over 20 buildings and is the largest campus in physical size. From the map of the campus attached to claimant's opposing papers as Exhibit F, the North and South campuses together appear to consist of over 30 buildings. Here, there is no evidence to suggest any prior problems with any of the windows on the CSI campus and claimant has failed to submit any evidence to suggest that such an inspection procedure was warranted or could have prevented this accident from happening. Only bona fide issues of fact will defeat an application for summary judgment (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978], and thus this mere speculation is insufficient to create a material question of fact.
Finally, claimant attempts to raise a question of fact by arguing that not one witness had any direct knowledge of the subject window nor of any subsequent repair of the subject window. Evidence of subsequent repairs and remedial measures are not discoverable nor admissible in a negligence case unless there is an issue of maintenance and control (Cleland v 60-02 Woodside Corp., 221 AD2d 307 [2d Dept 1995]). There is no such issue in this claim.
The Court concludes that defendant has submitted sufficient evidence to establish that if a dangerous condition existed, and there is no proof that there was one, that it did not create any dangerous condition or have actual or constructive notice of such a condition. Claimant has failed to establish a material issue of fact in opposition.
Accordingly, defendant's motion no. M-94851 for summary judgment is granted and claim no. 128130 is dismissed.
May 14, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and supporting affirmation of Assistant Attorney General Suzette Corinne Merritt dated November 6, 2019, with annexed Exhibits A-E;
2. Opposing affirmation of Frank J. Ditto, Jr., Esq. dated January 2, 2020, with annexed Exhibits A-F; and
3. Reply affirmation of Assistant Attorney General Suzette Corinne Merritt dated January 9, 2020.