This is the decision following the liability trial of the claim of Nina Hanson which arose from her fall of September 19, 2011 on the campus of Brooklyn College of defendant City University of New York.

Ms. Hanson was about four weeks into the fall term, having resumed her college studies from years earlier - - also at Brooklyn College. At the end of the day, she was about to leave James Hall and head for the bus stop: "I left the building, and as I was leaving the building, there was an obstruction in front of me. It was the trash can, so I went around the trash can, and my foot fell into the hole, and I fell to the right, and I fell on my knee and my hip, and I broke my ankle."

Claimant added to the description with the following:

"Q. Okay. Which foot went in the hole?

A. My right foot.

Q. And what happened to your right foot . . .?

A. I twisted it.

Q. How did it cause you to fall?

A. I twisted it as I - - when I fell."

Later, claimant testified that her foot got "caught" in the hole.

Hanson had on a backpack and was carrying "some notebooks" in her left hand. She was wearing sneakers and recalled that the weather was chilly and dry. Still light out, it was about 5 p.m.: "I think it was after five. I know it was after five. It was 5:06, 5:07, something like that." The Incident Report was consistent, listing the time of occurrence as 5:00 p.m. (cl exhs 10A and 10B).

The City University of New York - - at Brooklyn College and its other campuses - - has a duty to maintain its premises in a reasonably safe condition. That does not make it an insurer; if an accident occurs, negligence and causation must obtain in order for liability to be found (Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied, 96 NY2d 704 [2001]). Claimant is charged with proving by a fair preponderance of the credible evidence that her fall was proximately caused by a dangerous condition, of which the defendant had actual or constructive notice (or which it had created) (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Trincere v County of Suffolk, 90 NY2d 976 [1997]).

The sidewalk segment or flag has what was described as graffiti-like imprints on its surface, done when the concrete was still wet or "curing." The graffiti was at least 15 years old according to William Elfstrom, the college's administrative superintendent. Consequently, notice is not at issue here, unlike the facts in Gordon, which involved debris on the steps of a museum. Rather, the focus is on whether this was a dangerous condition, and if so, whether it was the proximate cause of claimant's fall.

Claimant's exhibit 2 shows the imprints of letters, numbers or figures on the sidewalk, part of which is a more pronounced defect that was described as a footprint. Ms. Hanson testified that this footprint indentation was what caused her to fall, and that she first noticed it right afterwards. However, claimant was not persuasive in proving that such was the mechanism of her accident.

It does not seem more likely than not that Hanson's sneaker-clad foot would get caught in such a defect or indentation (see cl exh 4). Even accounting for the fact that for most lay witnesses testifying in a court of law is an uncomfortable proposition, to this trier of fact, Ms. Hanson's testimony came across as forced, which together with a number of inconsistencies, made her insufficiently credible.

Ms. Hanson spent an inordinate amount of effort trying to show that she never left James Hall - - to what end, to avoid having to say she passed by the alleged dangerous condition? She testified that she arrived at the building at 8:30 a.m., had her first class at 11 a.m. and a two-hour lunch break for which there was no cafeteria - - only a table down in the basement where beverages are sold (see defendant's exhibit B, which contains Hanson's schedule for the term; note that September 19, 2011 was a Monday).

Later, she conceded that she did leave the building during the day. One cannot be expected to recall where they were all during the day three years previously, but here the effort to prove such conveyed artifice. On that note, considerable time was spent describing the position of the garbage can and characterizing it as an obstruction with the suggestion, but no explanation, that it somehow contributed to her accident.

In her deposition of October 16, 2012, Hanson testified that she called her boyfriend [*2]when she got to the hospital, but at trial answered "Yes" to "So you're saying that you called your boyfriend while you were laying on the ground after your fall?" Claimant called her boyfriend from either the pavement or the hospital, however when she wanted a photo taken that night, she called a "friend" named Sarah, but when asked Sarah's last name, replied, "I don't know."

In the photo that was claimant's exhibit 5, a twenty dollar bill was placed on the sidewalk to illustrate the dimensions of the defect. In her deposition, claimant testified, "I used a dollar bill, or a bill just to measure the size . . ." Then, perhaps reflecting a general orientation toward resisting all suggestions of defendant's counsel, but overall not reassuring of her effectiveness as a witness, was this exchange:

"Q. And would you agree with me that the dimensions or the size of a dollar bill and a $ 20 bill are the same?

A. I don't know . . . I never looked at it. I never looked at the dimensions if it's the same or not."

In sum, Ms. Hanson has not persuaded this trier of fact that things happened the way she said they did. In any event, claimant has not met her burden of proving that the condition was a dangerous one.

The Court of Appeals has explained that there are no specific threshold dimensions in order for a case like Ms. Hanson's to advance. Rather, it depends on the facts of each situation, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury (Caldwell v Village of Is. Park, 304 NY 268, 274)

Ms. Hanson testified that the pavement defect or hole was about 3 ½ by 6 ½ to 7 inches, and no more than an inch in depth. Mr. Elfstrom, the administrative superintendent, testified that what he termed an "imperfection" was "[a]bout three inches wide, maybe about a quarter inch deep, maybe four, four and a half inches long." While Elfstrom was only able to appear via deposition, his explanation of why he felt confident in his estimate of the dimensions of the defect was telling: "30 years I have as a cabinetmaker, I can actually tell the difference of a lot of thicknesses . . ."Defendants called to the stand Jerome Hall, a Brooklyn College employee with the title of specialist training officer operations, who was also in charge of the archives. Mr. Hall testified that he had reviewed the incident reports for the college for the years 2006 through 2011 (which included both inside the building structures and the grounds outside), and the only slip and fall he [*3]found in front of James Hall was Ms. Hanson's.^[FN2] Hall noted that "I had to read 1,647 reports."

This Court concludes that Nina Hanson has failed to prove by a preponderance of the credible evidence that the alleged causative defect on the sidewalk in front of James Hall is actionable under the Trincere standard, or otherwise that such defect was in the nature of a trap or snare.^[FN3]

In view of the foregoing, the Clerk of the Court is directed to dismiss claim no. 120542.

Let judgment be entered accordingly.