This is the decision following the trial of the claims of Gwyneth Barbara Moravec, arising from her fall as she was leaving the Colden Performing Arts Center of Queens College of the City University of New York. On Saturday, June 17, 2006, Mrs. Moravec, her son Leon Birk and Birk's wife and daughters attended a dance recital at the Performing Arts Center to see one of claimant's granddaughters (one of Birk's daughters) perform.

As one exits the Arts Center, there is a plaza before a staircase begins. There are then five sets of stairs, which appear to have the same number of steps, namely nine. The banks or sets of stairs are separated by landings.^[FN2] There are handrails on each side of the staircase that [*2]extend along the landings as well as the sets of stairs. Down the middle is a railing that is discontinuous; it runs along the steps, but not along the landings.

Aside from the subject incident which happened that night, it was a long evening. Mr. Birk took the stand and testified that the recital lasted approximately three hours and did not let out until after 11 p.m. He recalled that he and his mother walked down the same staircase they had used hours earlier to enter the Colden Center. Birk testified that he walked near the middle handrail with Mrs. Moravec to his left, and he was holding his mother's right arm in his left. The weather was clear; there was no precipitation.

As they began walking down the staircase, Birk testified that the following occurred:

I was walking down the stairs with my mother, arm-in-arm because she never was there before, and we went down, you know, the first set of steps. And then, all of a sudden, it was like she hit a brick wall. Her foot got caught and she went flying forward. It wasn't even like . . . a missed step where she would just go down. It actually stopped her dead in her tracks and she went forward. I tried to stop her, but the weight of her because it was such an abrupt stop of her foot, she pulled me . . . [s]he hit the ground first, I hit it right after her to the side . . .

When Mrs. Moravec took the stand, she explained that her son was going to drop her off at her apartment, that they were not in a rush, and that, "[a]s I came out of the building, there was light in the foyer there, but . . . it seemed to get much darker as we walked down towards the steps." Claimant testified that she was wearing sneakers and had her glasses on. Her recollection of what happened next was as follows:

We walked down the steps, and then a landing. And then I went down the second steps - - started down the second steps, and that's when I fell. And I went to try to hold my son, and the next thing I know, I'm at the bottom of the steps and there was the ambulance there, the police were there and my family is there. And the next thing I know is that someone says, she is coming around.

In addition to the foregoing rather imprecise testimony, portions of claimant's February 24, 2009 deposition were read at trial, including:

Question: You said you caught your foot on something. Do you know what you caught it on?

Answer: No.

Further, the claimant acknowledged that she did not know what step she had fallen on.

Both Mrs. Moravec and her son testified about the lighting. Leon Birk stated that, "[t]here were overhead lights, but one of them was out and it was, you know, pretty dim when we were leaving . . ." In her testimony, Moravec said, "[i]t was dark," and in her deposition, made this observation: "I walked out and, as I told you, the lights underneath here were dim, but it was light enough to see everybody and we were talking right after."

There was no showing that the brightness and positioning of the lights, as designed, did not comply with applicable standards. The Incident Report stated "Area was well lit" (def exh A, page 2). The report also provided that the "[a]rea was inspected and no sign of debris or anything that may cause aided to fall was found."

Sergeant Jose Sanchez, who signed the incident report, took the stand and stated that no lights in the area were out. The October 14, 2009 deposition of Basil Bascetta, chief administrative superintendent for buildings and grounds at Queens College, was entered into evidence as claimant's exhibit 13. Mr. Bascetta's testimony was that if a bulb were replaced, there would be a work order for it in the records, and none was found for the relevant period (cl exh 13, pp. 97-99).

This Court concludes that claimant has not met her burden as to the lighting in the area being inadequate. Our inquiry is thus focused on the condition of the stairs at the time of claimant's fall. Bascetta testified that the college had hired a contractor in 2004 to repair the steps because some of the bluestone was chipping or flaking away and some risers were deteriorating (id., p. 62). After the work was completed in 2004, there were no complaints about the bluestones or risers, although he thought the staircase, which had had to be entirely replaced in the late 1990's, was not of good construction and quality, "but my responsibility was to keep maintaining them as best we can . . ." (id., pp. 49-50, 52 and 103).

Each side called an expert engineer as a witness; the claimant called Richard Birkenfeld and the defendant, Michael Kravitz. Mr. Birkenfeld visited the site on September 19, 2008 and Mr. Kravitz went to the Colden Center twice in June of 2010.

Birkenfeld measured what he described as the "abrupt vertical difference in elevation from the bluestone edging at the edge of the landing between the first and second set of stairs" as nine-sixteenths of an inch. He cited ¶19-152 of the New York City Administrative Code to the effect that a half-inch vertical difference is a trip hazard.^[FN3] [*4]

Mr. Kravitz, while conceding that a half-inch vertical displacement would be a tripping hazard, measured the same spot at seven-sixteenths of an inch, pointing out that in the photos of Mr. Birkenfeld's level, the bubble therein indicated it was anything but (level). See, e.g., cl exh 5a. In any event, we do not know where Mrs. Moravec placed her foot just before she fell, and whether that place is one-sixteenth of an inch above the half-inch trip hazard standard or a sixteenth of an inch below.

Handrails

Claimant maintains that the spacing between the handrails violated recognized standards. Having measured the distance between the center handrail and the left handrail (as one descends) at 126 inches, Birkenfeld pointed to a provision of the Administrative Code of the City of New York that requires stairs wider than 88 inches to have intermediate handrails. However, that provision is part of a section of the Administrative Code which covers interior stairs, defined as a stair within a building that serves as a required exit. Subdivision (f)(1) of §27-375; §27-232. See Cusumano v City of New York, 15 NY3d 319 (2010).^[FN4]

Birkenfeld also cites the State Uniform Fire Prevention and Building Code, specifically 9 NYCRR §765.4(a)(11) which provides that, "If stairways are 88 inches or more in width, they shall also be provided with intermediate handrails . . ." That provision is also inapposite; it applies to exterior stairways adjoining a building at an exit. See 9 NYCRR §606.3(63)(v) and DiGrazia v Lemmon, 28 AD3d 926 (3d Dept 2006).^[FN5]

Defendant's expert Kravitz testified that neither the code provisions of the State nor City of New York required intermediate handrails on the subject staircase, observing that, "once you're outside the building, you're on a plaza that's about twelve feet deep. Then you get to a [*5]driveway that's about twelve feet wide." In any event, the effect of the handrail spacing on the mechanics of Mrs. Moravec's fall was not proven, given that, as set forth above, Mrs. Moravec was walking to the left of her son, holding his left arm as he walked next to the middle handrail.

What transpired at the Arts Center on a summer evening when Gwyneth Barbara Moravec just wanted to enjoy her family and her granddaughter's performance was perfectly awful. However, the State is not an insurer, and claimant bears the burden of proving her case by a preponderance of the evidence. Given the fact that Mrs. Moravec has not satisfied her burden as to how she fell, where she fell and the scale of the defect she encountered, I am constrained to dismiss her claims (nos. 114043 and 115211). The Chief Clerk of the Court is directed to enter judgments accordingly.

New York, New York

November 30, 2011

ALAN C. MARIN

Judge of the Court of Claims