Jackson v. Board of Educ., 7742.

• Decision Date: 04 April 2006
• Docket Number: 7742.
• Parties: ROOSEVELT JACKSON, Respondent, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Appellant.
• Court: New York Supreme Court — Appellate Division

30 A.D.3d 57

812 N.Y.S.2d 91

2006 NY Slip Op 02480

ROOSEVELT JACKSON, Respondent, v. BOARD OF EDUCATION OF THE CITY OF NEW YORK, et al., Appellant.

7742.

Appellate Division of the Supreme Court of the State of New York, First Department.

April 4, 2006.

APPEAL from an order of the Supreme Court, New York County (Paul G. Feinman, J.), entered August 22, 2005. The order denied defendants' motions for summary judgment dismissing the complaint and cross claims in a personal injury action.

Michael A. Cardozo, Corporation Counsel, New York City (Mordecai Newman, Larry A. Sonnenshein and Steven N. Blivess of counsel), for Board of Education of the City of New York, appellant.

Conway, Farrell, Curtin & Kelly, P.C., New York City (Jonathan T. Uejio of counsel), for Board of Trustees of the Fashion Institute of Technology, appellant.

Jeffrey Samel & Partners, New York City (David Samel of counsel), for American Building Maintenance Co., appellant.

Miller & Goldman, New York City (Julie L. Miller and Linda A. Goldman of counsel), and Alpert & Kaufman, LLP, New York City, for respondent.

OPINION OF THE COURT

SULLIVAN, J.

On February 22, 2002 at about 6:30 P.M., near the end of his work shift, plaintiff, a utility worker employed by Aramark Educational Services, the exclusive food services contractor for the Fashion Institute of Technology (FIT), slipped and fell on a food substance near the freight elevator on the fifth floor at an FIT facility in Manhattan, thereby sustaining injuries. He thereafter commenced this action in Supreme Court against the Board of Education of the City of New York (BOE), as the building owner and operator, the Board of Trustees of FIT, as the lessee and operator, and American Building Maintenance Co. (ABM), a maintenance company under contract to FIT, alleging negligence in the ownership, operation and maintenance of the premises.

Codefendants BOE and ABM separately cross-moved for summary judgment dismissing the complaint and any cross claims.^* FIT also moved for summary judgment dismissing the complaint and cross claims. BOE argued that it owed no duty of care to plaintiff as it did not own, operate, maintain or control the premises. Alternatively, it argued that it cannot be held liable for plaintiff's injuries since Education Law § 6306 (5) assigns responsibility for FIT's daily operation to FIT's Board of Trustees. It also argued that, in any event, plaintiff cannot show it had notice of the alleged condition causing the accident. FIT and ABM each similarly argued that it had no notice of the alleged condition. Nor, each argued, did it create the condition. ABM also argued that plaintiff's employer, Aramark, was solely responsible for maintaining the area where plaintiff fell. In addition, ABM argued that as a janitorial services provider that contracted with FIT, it owed no duty directly to plaintiff.

The court denied summary judgment as to all the moving parties, holding, inter alia, that BOE was deemed to have a statutory duty to manage the FIT campus along with the trustees of FIT. It also held that FIT's contracts with Aramark and ABM raised material issues of fact as to the actual scope of the respective responsibilities of ABM and Aramark. Thus, the court held, each of those defendants failed to show, as a matter of law, that it owed no duty of care to plaintiff. The court also found an issue of fact as to constructive notice. This appeal followed.

As to whether BOE owed a duty of care to plaintiff, the motion court erroneously relied on the principle of issue preclusion in citing the decision in the related case of Jackson v State of New York (Ct Cl, July 10, 2002), which held that FIT is a "community college sponsored by the Board of Education of the City of New York . . . [and as] a result, the Board of Education of the City of New York is `vested with the powers of the board of trustees of [the] community college' . . . and is responsible for the `care, custody, control and management of the lands, grounds, buildings, facilities and equipment' of the school (Education Law § 6306 [5])." The court also cited Amato v State of New York (131 Misc 2d 1049, 1052 [1986]) for the proposition that Education Law § 6306 produces a "dual nature of operation, maintenance and control" in which the Board of Education and FIT's Board of Trustees simultaneously maintain overlapping duties with respect to FIT.

In both of these cases, however, the personal injury actions against FIT were dismissed for lack of jurisdiction since FIT is part of neither the State University of New York nor the City University of New York. The only issue essential to the courts' disposition of those cases was whether FIT was a proper party before the Court of Claims. Since that court lacked jurisdiction to decide the merits of any other issue in the particular action, its statements on any other issue were mere dicta, unrelated to the issue actually litigated on the merits. Moreover, inasmuch as BOE was not a party to either action with an opportunity to be heard on the issue, it could not be precluded in this action on the basis of collateral estoppel (see Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]).

As to the merits, the record shows that since BOE does not own, operate, maintain or control FIT's premises, it owes plaintiff no duty of care. Title to the premises where the accident occurred, known as the Dubinsky Student Center, at 243 West 27th Street, vests in the City of New York, not BOE. "Liability for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises" (Gibbs v Port Auth. of N.Y., 17 AD3d 252, 254 [2005]; Balsam v Delma Eng'g Corp., 139 AD2d 292, 296-297 [1988], lv dismissed and denied 73 NY2d 783 [1988]). Since there is no showing of BOE's occupancy, control or special use of the premises, any liability premised on operation and maintenance must rest on the Board of Trustees of FIT, the lessee and operator of the premises and the party responsible for its maintenance, or, if the facts demonstrate, ABM, its maintenance contractor.

Contrary to Supreme Court's ruling and the Court of Claims decisions on which it relied, Education Law § 6306 does not impose upon BOE a duty to manage or assume responsibility for the maintenance of FIT's facilities. FIT, a community college established pursuant to Education Law article 126, entitled "Community Colleges and State-aided Four-Year Colleges," operates in the City of New York under the sponsorship of BOE (see Education Law § 6302 [3]). As the sponsor of FIT, BOE is responsible for its fiscal operation (see Meyer v Wiess, 25 AD2d 174 [1966]). The responsibility for the day-to-day management of the college's facilities falls upon its trustees. Specifically, Education Law § 6306 (5) imposes upon the trustees of FIT the care, custody, control and management of its campus buildings. The statutory scheme controls the relationship between BOE, as sponsor, and FIT's Board of Trustees, as lessee of the facilities, affording the latter the freedom to conduct the daily operations of managing the facility as it sees fit, including the right to contract for its maintenance (see Kuznetz v County of Nassau, 229 AD2d 476, 476 [1996] ["The management of the affairs of the College rests with its Board of Trustees"]; Meyer, 25 AD2d at 176-177).

This statutory scheme designating its Board of Trustees as the sole party responsible for the operation of FIT's facilities shields BOE, the sponsor, from liability that might otherwise attach. In Matter of Weinstein v Caso (44 AD2d 690 [1974]) petitioners, professors at Nassau Community College, challenged a decision by the college's sponsor, the County of Nassau, to change a "rent-free" housing policy for certain faculty personnel. The Court, noting the board of trustees' "sole authority" over the administration of community colleges, held that the housing policy, "if it is to be changed, must be changed by the board of trustees, which is enjoined by law (Education Law, § 6306, subd. 2) to `discharge such other duties as may be appropriate or necessary for the effective operation of the college'" (id. at 691). Notwithstanding that the issue here relates to maintenance of the college premises arising out of responsibility for the operation and control of said premises and not administrative policy, the fact is that since the Board of Trustees is the only entity authorized to operate the college, it alone is charged with the duty of care.

Aside from relying, mistakenly, on the doctrine of issue preclusion in reaching its determination that BOE owed a duty of care to plaintiff in the maintenance of the premises, Supreme Court quoted approvingly from both the decision in the related matter, Jackson v State of New York (supra [the school being a community college sponsored by BOE, BOE is "vested with the powers of the board of trustees" and is responsible for the "care, custody, control and management of the lands, grounds, buildings, facilities and equipment" of the school, under Education Law § 6306 (3) and (5)]) and Amato (131 Misc 2d 1049 [1986], supra).

Both courts, however, misconstrued Education Law § 6306 (3) insofar as it provides that the BOE, in its capacity as the sponsor, is "vested with the powers of a board of trustees." Under the statute, this vesting of powers applies only where the BOE has assumed for itself the role of board of trustees. The very sentence containing the "vested with" language goes on to authorize an alternative vesting of such powers in a board of trustees independent of the BOE, i.e., "or upon the application of the sponsoring board, approved by the state university trustees, the board of trustees of such community college may be appointed and serve in the manner provided by subdivision one of this section." The choice of vesting power in the BOE or in a separate board of trustees creates two alternative and...