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SYDNEY H. SCHANBERG v. STATE NEW YORK (01/09/69)

COURT OF CLAIMS OF NEW YORK Claim No. 44000 1969.NY.40061 <http://www.versuslaw.com>; 296 N.Y.S.2d 646; 58 Misc. 2d 605 January 9, 1969 SYDNEY H. SCHANBERG, CLAIMANT,v.STATE OF NEW YORK, DEFENDANT Wallace Tannenbaum, Samuel Weinbaum and Joseph Kossar for claimant. Louis J. Lefkowitz, Attorney-General (Robert G. Farrell of counsel), for defendant. Milton Alpert, J. Author: Alpert


Milton Alpert, J.

Author: Alpert

 The State of New York maintains and occupies a building at 80 Centre Street in the City of New York wherein various agencies of the State government are located. On the fourth floor of the building are offices occupied by the Attorney-General and members of his staff.

Claimant is a news reporter for the New York Times and, in 1964, was assigned to gather news from State agencies in the City of New York and from some city agencies. He had the so-called "State Beat." In the course of his duties, he regularly visited the New York City offices of the Attorney-General at 80 Centre Street. To assist representatives of news media, the Attorney-General provided a "press room" in Room No. 408 of 80 Centre Street. This area was equipped with desks, typewriters and telephones. However, it was customary for reporters to receive and discuss press releases in the adjoining rooms, No. 410 and No. 412, where various members of the Attorney-General's public relations staff maintained their offices.

Claimant very often was invited into these offices to receive press releases and other news information concerning the Attorney-General's office. He was also expected to come to these offices to discuss matters and to obtain answers to questions which might lead to his preparation of news stories concerning the subjects under consideration.

Room No. 412 was occupied by the Executive Assistant to the Attorney-General and the assistant to such Executive Assistant.

The room contained two desks on one side thereof. On the opposite wall, approximately 8 to 10 feet from the assistant's desk, and affixed to a concrete pillar, was a washbasin or sink. It was a single pedestal basin, oval in shape, with a white porcelain surface. There were two porcelain faucet handles above and parallel to a shelf-like flat area above and behind the basin portion. There was a handle on each side of the center combined waterspout and drain control -- that for hot water was on the user's left and that for cold on the user's right. The handles of the faucets were made of porcelain, and were of a bar or lever type in shape, rather than of spoke or wheel design. The handles were attached by means of a cement-type adhesive substance to a screw-type stud which extended out from the base of the faucet structure. The stud had a brass exterior surface, the interior being of compressed metallic granular construction.

On June 12, 1964 at about 2 o'clock in the afternoon, claimant visited Room No. 412 in his usual and normal routine in seeking news releases. At that time, the room was occupied only by the executive's assistant.

Claimant testified that he sat down in a chair near this assistant's desk and engaged in conversation with the assistant. During the conversation, claimant testified that there was a steady, audible drip of water in the washbasin, that it was a kind of splashing sound, and that it was audible to the point of disrupting the conversation. Claimant further testified that he had heard a dripping sound in that washbasin before on practically every visit to the room, that on occasion he had used the washbasin to wash his hands, that he had thus previously identified the drip as coming from the cold water faucet, that he had been unsuccessful in stopping the drip on those occasions but had been successful in diminishing it, and that he had asked the room occupants in a joking manner when was it going to be fixed.

On this particular day, claimant testified that the drip was so audible that it was disturbing the conversation and that he got up from his chair and walked over to the washbasin and, with his right hand clasped around the handle and thumb extended, turned the cold-water knob in a counterclockwise motion so as to diminish the flow of water -- he did not expect to stop it altogether. He testified that he stopped when he arrived in front of the washbasin, that he exerted energy to turn the handle from his right shoulder through his right arm, that he dipped his right shoulder in doing so, and that his right foot was forward a bit. He described his effort as exerting pressure by dipping his shoulder, exerting energy through his arm, turning his right wrist out and dropping the level of his right wrist below that of the level where his fingers and upper palm grasped the handle. The handle broke -- this included the screw-type stud and the porcelain sleeve which covered the stud or core. The porcelain sleeve split into pieces. One piece remained attached to the core and base and it probably was the one which cut into claimant's right wrist below the center of the palm, causing the injuries for which claimant here seeks to recover damages in the sum of $250,000.

The claim was timely filed in the Court of Claims on July 1, 1964. The claim was tried in January of 1967 and resulted in an award to claimant. On appeal to the Appellate Division, Third Department, the judgment was reversed and a new trial directed (Schanberg v. State of New York, 30 A.D.2d 712, revg. 53 Misc. 2d 116).

The instant decision is on such new trial which was had in December, 1968.

Claimant was legitimately upon the premises in connection with his duties that were useful to his employer, as well as to the State of New York. The distinction between a visitor who is a mere licensee, who assumes all the risks of the premises except those resulting from intentional, wanton or malicious acts, and one who is on the premises by invitation, turns largely on the nature of the business which brings him there (Hall v. State of New York, 173 Misc. 903, affd. 265 App. Div. 1037). Claimant clearly was there as an invitee in a business relationship. (See Cesario v. Chiapparine, 21 A.D.2d 272.) As such an invitee, the State was not an insurer of claimant, but the State owed him the duty of using reasonable care to prevent injury (3 Warren's Negligence, ยง 4.01, pp. 231-233). The State had to use reasonable care to keep the premises in a safe and suitable condition so that those coming upon it would not be unusually and unreasonably exposed to danger. The State owed him the duty of guarding him from dangers known to it, but not to him, as invitee (Hall v. State of New York, supra). This rule applies only to the portions of the property as the claimant was invited to enter, or which it might reasonably be expected that claimant would go in answer to the invitation, expressed or implied (Brister v. Flatbush Leasing Corp., 202 App. Div. 294).

Claimant was invited to use the premises of Room No. 412 and, accordingly, the State was under a duty to use reasonable care to prevent injury to him.

The building maintenance supervisor's testimony taken at an examination before trial was read into the record. He stated therein that the building was constructed in 1927 or 1928; and that he had been employed by the State at 80 Centre Street for a period of 30 years, was in charge of maintenance and supervised 10 employees. He stated that repairs to the plumbing were made by the plumber, although at times, he made plumbing repairs and was ...


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