Alban v. Cornell Univ.

Decision Date11 June 2015
Docket Number7145/12
Citation2015 N.Y. Slip Op. 25205,48 Misc.3d 1062,10 N.Y.S.3d 857
PartiesSiobhan ALBAN, Plaintiff, v. CORNELL UNIVERSITY, Defendant.
CourtNew York Supreme Court

Law Offices of Michael A. Cervini, by Michael A. Cervini, Esq., Elmhurst, for Plaintiff.

Wade Clark Mulcahy, by Alison M. Weintraub, Esq., New York, for Defendant.



Defendant's motion (Seq. 001) for summary judgment pursuant to CPLR § 3212 is denied as set forth herein. However, plaintiff does not oppose that portion of the motion which seeks summary judgment on a claim of negligent hiring and retention of non party Rizvi a teaching assistant (TA). Segal v. St. John's University, 69 A.D.3d 702, 893 N.Y.S.2d 221 (2d Dept. 2010). Accordingly, that claim is dismissed.

All requests for relief not specifically addressed are denied.

This action arises out of an accident that took place in a chemistry laboratory class at Cornell University on June 25, 2009, during a regularly scheduled summer school class for high school and college students. Plaintiff, then aged 17, and rising from junior to senior year of high school, was injured on her first day of the class while performing a liquid chemistry test which required the use of a glass volumetric pipette in combination with a rubber suction bulb. Plaintiff was in the process manipulating the pipette and bulb when the former broke, causing injury.

Plaintiff previously had filled out a one-page questionnaire in which she stated that she had a “high school level chemistry class” and was interested in chemistry. She received “credit” for the summer class but it was not (as defendant contends) identified as college credit. The class instructor was not present during the experiment, and did not witness the event. The TA who was present has not submitted an affidavit as to her knowledge of the facts.

Defendant contends that a “Lab Manual” distributed to the students, and which plaintiff acknowledges she studied, contains adequate instructions for a liquid density test. However, a perusal of the instructions reveals sparse information, consisting of an 8–line paragraph as to how the experiment was to have been performed. Moreover, defendant does not deny plaintiff's assertion that little or no instructions were given by the instructor (who was not present) or the TA, who as noted has not submitted any evidence.

Plaintiff's previously disclosed expert states that the instructions provided were inadequate.

Defendant's expert,—who since 2014 has been working for defendant—states that it is standard practice for a TA to teach and supervise the lab component of a college course. Plaintiff requests that the Court disregard this affidavit because the “expert” was not previously disclosed, but the Court will consider it. Plaintiff has not given any evidence of having made a request for expert witness disclosure and in any event the Court chooses to exercise its discretion to consider the affidavit Kozlowski v. Oana, 102 A.D.3d 751, 959 N.Y.S.2d 500 (2d Dept.2013).

However, the Court finds that the affidavit fails to establish a prima facie showing of lack of negligence, fails to establish any expertise on the field of teaching summer school to high school students, and addresses only the practice of using a TA in the lab. It does not address the adequacy of the Lab Manual or the events on the day of the incident.

The Court notes a failure to account for a three-year gap in the expert's resume, or as indicated any experience with high school students. During the period 20062011 during which the accident happened, the expert was a graduate student and not a TA. He fails to qualify his opinion based upon what was prevalent in higher education at that time.

The affidavit of the instructor, who was not present, is also offered as expert testimony. However this affidavit is self serving, bereft of facts, predicated in part on hearsay from unknown sources and is based primarily on her experiences at Cornell. In sum, it is of minimal probative value and insufficient to ground this motion.

The law on summary judgment is well settled. Summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957) ; Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept.1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 A.D.2d 797, 589 N.Y.S.2d 678 (3d Dept.1992) ; Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3d Dept.1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks v. Blue Cross of Northeastern New York, Inc., 190 A.D.2d 894, 593 N.Y.S.2d 119 (3d Dept.1993).

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3212[b] ), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v. Farrell Lines, 64 N.Y.2d 1092, 489 N.Y.S.2d 884, 479 N.E.2d 229 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985).

If a sufficient prima facie showing is made, however, the burden then shifts to the nonmoving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial.

CPLR 3212(b) ; see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 498 N.Y.S.2d 786, 489 N.E.2d 755 (1985) ; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980). The nonmoving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134 (2d Dept.1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra ), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380, 615 N.Y.S.2d 702 (2d Dept.1994) ; Toth v. Carver Street Associates, 191 A.D.2d 631, 595 N.Y.S.2d 236 (2d Dept.1993). Nor can mere speculation serve to defeat the motion. Pluhar v. Town of Southampton, 29 A.D.3d 975, 816 N.Y.S.2d 176 (2d Dept.2006) ; Ciccone v. Bedford Cent. School Dist., 21 A.D.3d 437, 800 N.Y.S.2d 452 (2d Dept.2005).

However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385, 759 N.Y.S.2d 171 (2d Dept.2003) ; Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546, 626 N.Y.S.2d 280 (2d Dept.1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 A.D.2d 553, 590 N.Y.S.2d 224 (2d Dept.1992) ; Barr v. County of Albany, 50 N.Y.2d 247, 254, 428 N.Y.S.2d 665, 406 N.E.2d 481 (1980) ; James v. Albank, 307 A.D.2d 1024, 763 N.Y.S.2d 838 (2d Dept.2003) ; Heller v. Hicks Nurseries, Inc., 198 A.D.2d 330, 605 N.Y.S.2d 888 (2d Dept.1993).

The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. See Village Bank v. Wild Oaks Holding, Inc., 196 A.D.2d 812, 601 N.Y.S.2d 940 (2d Dept.1993) ; Barclays Bank of N.Y. v. Sokol, 128 A.D.2d 492, 512 N.Y.S.2d 419 (2d Dept.1987), such as when the affidavit in opposition clearly contradicts earlier deposition testimony. Central Irrigation Supply v. Putnam Country Club Assocs., LLC, 27 A.D.3d 684, 812 N.Y.S.2d 633 (2d Dept.2006).

Defendant contends that plaintiff's affidavit on this motion is feigned because it contradicts her deposition testimony, relying on portions of plaintiff's two day 115 page deposition. However, there is no clear contradiction as to the essential facts and no evidence that the affidavit has been tailored. Cf., Castro v. City of New York, 94 A.D.3d 1032, 944 N.Y.S.2d 155 (2d Dept.2012) [“clearly ... feigned”]; see also Phillips v. Bronx Lebanon Hospital, 268 A.D.2d 318, 701 N.Y.S.2d 403 (1st Dept.2000). Rather, defendant's claim of contradiction is based on interpretation, nuance and speculation. It cannot be said that plaintiff's affidavit clearly contradicts, materially or directly her previous testimony. Moreover, evidence in the record, apart from the affidavit itself can raise a triable issue of fact notwithstanding contradicting deposition testimony. Fields v. Lambert Houses Redevelopment Corp., 105 A.D.3d 668, 671, 965 N.Y.S.2d 23 (1st Dept.2013). Here, based on all the evidence it cannot be said that any perceived contradictions in the deposition justify ignoring all of the other evidence which supports denial of summary judgment.

More fundamentally, defendant contends that because the accident took place in a college class its duty to supervise the plaintiff was that of a college to a student and not of a party in loco parentisto the student.See, Pasquaretto v. Long Island University, 106 A.D.3d 794, 964 N.Y.S.2d 599 (2d Dept.2013), Fulton Montgomery Community College v. County of Saratoga, 80 A.D.3d 217, 912 N.Y.S.2d 702 (3rd Dept.2010) and Luina v. Katharine Gibbs School, 37 A.D.3d 555, 830 N.Y.S.2d 263 (2d Dept.2007).

This position ignores certain facts in this...

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