Scott v. Board of Education

Judgment, Supreme Court, New York County (Seymour Schwartz, J.), entered in favor of defendants on December 12, 1991, upon a jury verdict which found that defendant Board of Education did not have constructive notice of the condition of the stairway in P.S. 123 which plaintiff claims caused her to fall, unanimously reversed, on the law, the judgment vacated and the matter remanded for a new trial, without costs.

On August 29, 1985, the then 65 year old plaintiff was accompanying her grandchildren and their 13 year old friend, Sabrina Smith, to have lunch at a summer lunch program conducted at P.S. 123 in Harlem. This was plaintiffs first occasion to participate in the program and she did not notice any debris on the stairs as she entered. After lunch, as she descended the steps from the lunchroom, she slipped on some food and fell to the bottom of the stairway, fracturing her left ankle.

Under the circumstances presented, it was error to exclude the testimony of Ms. Smith that she participated in the school lunch program every day that summer, that on the day of the accident the stairway was covered with food and debris, and that this condition had existed on every day that lunch was served during the months of July and August, which testimony was admissible in order to demonstrate the possibility that the condition which led to the accident was recurrent so as to place defendant on constructive notice of the dangerous condition (see, King v City of New York, 186 AD2d 491; Bronx County Pub. Adm’r v New York City Hous. Auth., 182 AD2d 517). Concur—Sullivan, J. P., Wallach, Kupferman and Rubin, JJ.