O&B Obtains Appellate Division Reversal
April 2004

Plaintiff Felicia Garcia, an employee of Sodexho, a company which provides food services to Fordham University, claimed that on October 26, 1999, she fell on a back service stairway in the campus student center. The plaintiff asserted claims against the Jesuits of Fordham and Fordham University. She claims that she suffered a fracture of her right distal tibial shaft requiring open reduction surgery and internal fixation. Plaintiff's last settlement demand was $300,000.

At her deposition, Ms. Garcia simply could not identify the cause of her fall. She speculated that it could have been caused by the presence of grease or water, that she admitted was the result of Sodexho's employees removing trash down the stairway "moments before" her fall. However, she also claimed that her fall was caused by a "raised metal lip" on the edge of the stairway. The defendants moved for summary judgment on several grounds, including that: the plaintiff could not identify the cause of her fall; the alleged greasy condition was not created by the defendants and the defendants did not have actual or constructive notice of the condition, and; there was no evidence of a structural defect on the stairs. The defendants also submitted evidence that the Jesuits of Fordham did not own, operate, manage or control the building where the accident took place.

Plaintiff's opposition to the motion included a contradictory affidavit, claiming the fall was caused by a defect on the stairs, unauthenticated photographs of the stairway and the affidavit of an expert engineer. The engineer, based solely upon the plaintiff's affidavit and testimony and the unauthenticated photographs, without ever conducting an inspection of the premises, opined that there were various administrative code violations. There was also no evidence that the defect identified by the plaintiff's expert actually caused the plaintiff's accident. The plaintiff did not submit any evidence contradicting the Jesuits' lack of ownership of the building.

Justice McKeon of the Supreme Court, Bronx County, originally granted the defendants' motion for summary judgment, based upon the lack of notice, failure to identify the cause of the accident, and plaintiff's insufficient evidence submitted in opposition to the motion. In response to plaintiff's motion to reargue, Justice McKeon then reversed himself. Without any explanation, other than the fact that he was "troubled" about the "plaintiff's lack of clarity" he found that questions of fact existed. The defendants appealed from the decision.

On April 1, 2004, the Appellate Division, First Department, in a published opinion, reversed Justice McKeon's decision and dismissed all claims against the defendants. Specifically, the Appellate Division found that there was no evidence that The Jesuits owned, managed or controlled the building where the plaintiff allegedly fell. Further, the Appellate Division noted that all the evidence submitted indicated that the University did not control or utilize the subject stairway. Further, the University did not create or have actual or constructive notice of any alleged defective condition. The plaintiff also failed to raise any triable issues of fact as to whether there was a structural defect for which the University could be held liable. There was no evidence that the conditions observed by the plaintiff's expert engineer existed at the time the plaintiff was injured or that any violations of the Administrative Code, if they even existed, were the proximate cause of the plaintiff's injuries. The plaintiff's conflicting statements about what caused her fall were deemed insufficient to defeat the defendants' properly supported motion for summary judgment.

The defendants were represented by Bennett R. Katz, a partner of the firm. A copy of the decision may be obtained at 2004 N.Y.App. Div. Lexis 3735 (Apr. 1, 2004).

(Prior results do not guarantee similar outcome.)