Judge Luis Benza [New York Law Journal]

CHILDS V. CITY UNIVERSITY OF NEW YORK QDS:04700682

1/21/99 N.Y.L.J. 30, (col. 4)

New York Law Journal
Volume 221, Number 13
© 1999 NLP IP Company

Thursday, January 21, 1999

Court Decisions
First Judicial Department
Judge Benza
[Edited for publication]

CUNY Liability

It is defendant’s contention that it is immune from liability for injuries sustained by claimants while attending an ESG-sponsored function at one of its facilities. More specifically, defendant states that its participation in the “celebrity basketball game” was governmental in nature, and since claimants failed to establish that a special duty existed between them and defendant, their cause of action should be dismissed. It is well recognized in this jurisdiction that the special-relationship rule has no application in cases where the government or any of its designated agencies is acting in a proprietary function (Schrempf v. State of New York, 66 NY2d 289, 294), and when acting in a proprietary manner, the government agency or its designated agency is held to the same duty of care as private individuals and institutions engaging in the same activity (Miller v. State of New York, 62 NY2d 506, 511; Caldwell v. Village of Island Park, 304 NY 268, 274)). Even if the Court were to accept the argument that the activity was governmental in nature, the immunity imposed would not be one generating from claimants’ failure to establish a special relationship, as required in cases involving allocation of police resources, since CCNY did not, prior to the occurrence, have its own police force; nor was CCNY required under the legislative fiat which created it, to appoint and maintain its own police force (Education Sec. 6203).[FN6] CCNY security forces were privately contracted and the number of security personnel used on any given occasion was based on the anticipated amount of campus activity generated the occasion (see, Elique’s and David’s testimony). The fees charged student groups for the use of campus facilities were based on certain criteria set by CCNY officials and varied based on the amount of security the officials determined was needed in each particular instance (see, Exhs. 10 & 11; Charles’ and Elique’s testimony). The system was set up so that the security provided for events conducted by student groups or others would be paid by said groups based on a schedule maintained by CCNY. In this case, as evidenced both by the testimony and Exhibits 10 and 11 (the approved applications), the security allocated to ESG for its basketball games to be held on December 20 and 28 was based on the anticipated attendance and was determined to be five guards and one supervisor. Thus, the activity from which the negligence of CCNY emanates does not involve or grow directly out of the failure to allocate police resources (see, Weiner v. Metropolitan Transp. Auth., 55 NY2d 175) or from the exercise of police power, a governmental function entitled to immunity (Motyka v. City of Amsterdam, 15 NY2d 134). As there was no police force from which an allocation for the protection of the public could be made, the allocation of security in the instant case was not “limited by the resources of the community and by a considered legislative-executive decision as to how those resources may be deployed” (Riss v. City of New York, 22 NY2d 579, 581-582). In determining whether CCNY was responsible for the injuries sustained by claimants, the Court is not making any determination on how limited police resources are made, but is simply restating the distinction made in Riss (id.) governing standards of liability for governmental activities “which have displaced or supplemented traditionally private enterprises, such as are involved in the operation of rapid transit systems, hospitals, and places of public assembly. * * * To be equally distinguished are certain activities of government which provide services and facilities for the use of the public, such as highways, public buildings and the like, in the performance of which the municipality or the State may be liable under ordinary principles of tort law” (id., at 581). Or, as stated in Bass v. City of New York (38 AD2d 407, supra, at 411), “[i]t may well be, in certain instances, that to the extent [CUNY] is carrying out activities which traditionally have been engaged in by private landlords it is performing a corporate function and acting in a proprietary capacity and the imposition of liability on established principles of tort law would logically follow * * *.” It cannot be said under the circumstances presented here that the approval by CCNY’s officials of the use of the facility on December 28, 1991 based on the information contained in the application and their determination of the amount of security required for the event constituted a discretionary act entitled to government immunity (see, Howe v. Village of Trumansburg, 199 AD2d 749). This grant of immunity for discretionary acts of governmental authorities “presupposes an exercise of discretion in compliance with [the authorities’] own procedures. Indeed, the very basis for the value judgment supporting immunity and denying individual recovery for injury becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion” (Haddock v. City of New York, 75 NY2d 478, 485). Accordingly, CCNY is not, in the present case, protected from liability based on any sovereign immunity defense. Once sovereign immunity was abolished by statute the extension of liability on ordinary principles of tort law logically followed. It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to plaintiff (Palsgraf v. Long Is. R.R. Co., 248 NY 339). Thus, the duty of care owed by CCNY under the circumstances presented is that of any landlord and is measured by the same principles of tort law applicable to a private landlord (see, Preston v. State of New York, 59 NY2d 997; Miller v. State of New York, 62 NY2d 506, supra, at 511). These principles of tort law enunciated in Miller (id.) were defined in Basso v. Miller (40 NY2d 233) as requiring the landlord to “act as a reasonable [person] in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (id., at 241, quoting from Smith v. Arbaugh’s Rest., 469 F2d 97, cert denied 412 US 939). The duty imposed requires the landlord to exercise ordinary care against foreseeable dangers, including furnishing “an adequate degree of general supervision of such activities as would endanger others utilizing the [facility]” (Rotz v. City of New York, 143 AD2d 301, 304). The application of this duty to exercise ordinary care is a subjective standard “relative to time, place and circumstance. Ordinary care must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated from the neglect * * * ” (id., at 305 [citations omitted]).

In the instant case, both the testimony of the CCNY officials responsible for the safety of the public using CCNY facilities and the documentary evidence as to the college’s policies and procedures governing use of its facilities clearly illustrate CCNY’s negligence. The officials’ conduct in evaluating the application for use of campus facilities for December 28, 1991 event and the manner in which they made the security arrangements for that night’s activity were totally unreasonable based on the officials’ failure to obtain the necessary information required to make a realistic evaluation of expected attendance and attending security requirements. Similarly, these officials, as well as other CCNY representatives, were negligent in failing to take ordinary care and take reasonable action based on their observations of the December 20 occurrence, reasonable action which, had it been taken, would have prevented the disastrous results that ensued. The basic standards followed in approving the use of CCNY facilities by students and other community groups for a given event and in determining the amount of security required for that event were in a state of disarray at the time Kirnon submitted her applications to use the gym on December 20 and 28, 1991 (Exhs. 10 & 11). Based on the testimony of CCNY officials, an amendment to the University Fiscal Handbook (the Handbook), effective May 1, 1990, setting down guidelines for the use of CCNY facilities, placed all security for an event held on University premises under the control and supervision of the University, and prohibited frisking and other searches except by law enforcement officials (see, Exh. 13 section XII [E] [8]). By memorandum dated April 10, 1990 from A. Corbin, Vice Chancellor For Student Affairs and Special Programs (VCSA8P), all college presidents were informed of certain revisions made to section V (J) of the Handbook. The revised section provided, inter alia, that college security shall be the responsibility of the college administration, and any special security arrangements shall be approved prior to the event. By memorandum dated December 16, 1991, addressed to “Vice Presidents/Deans of Students,” the Office of the VCSASP inquired about compliance with the new regulations and requested the recipients of the memo to communicate their compliance status by completing the questionnaire included in the memo and returning it to VCSASP by December 31, 1991. Attached to Exhibit 13 is a copy of the completed questionnaire filled out by William Hamilton of CCNY, which indicates that at the time he filled out the questionnaire, CCNY was not in compliance. That status account, however, was contradicted by McDonald at his EBT. McDonald stated that in December 1991 he was Vice President of Student Affairs and that he authorized his assistant to complete the questionnaire and sign his (McDonald’s) name to it. The document indicates that CCNY was in compliance with the revised regulations (see, Exh. 16, which includes copy of memo/questionnaire). Contradicting testimony of CCNY officials as to where responsibility rests for the approval and coordination of events for outside activities established just how pervasive the state of confusion was among CCNY officials as it related to the proper procedures to be followed before approving the December 28, 1991 event. Additionally, the Handbook, by reference, was clear as to how tickets for the event were to be handled (see, Exh. 13, 18), and expressly placed the printing, the distribution and the accounting of all tickets under the control of the college association office. Based on Araouzos’ testimony, in addition to complying with the guidelines hereinabove enunciated, the various departments involved in the approval process for the event were required to hold a meeting to coordinate the manner in which they would carry out their responsibilities. It was at this meeting that security was to determine the amount of security that would be required, and their determination would be based on the type of event and the number of people expected to attend. According to Araouzos, however, such a meeting was never held. Instead, security for the event of December 28 was based on the false application which had been filed by Kirnon (Exh. 11) and approved by Charles. Based on Charles’ trial testimony, he did approve the application even though it contained no information as to the number of people expected to attend. He testified that he accepted Kirnon’s verbal estimate of 500 people; that he did not ask her to write that number down on the application because he thought the number would be “ironed out” at the meeting with the other departments. Besides, he stated, students can lie about expected attendance. The determination to assign five guards and one supervisor for the event was made based on David’s estimate that the largest turnout for any basketball game previously held at CCNY was 500 people. This determination was made without the required review and coordination by the various department heads as outlined by CCNY’s practices and procedures. It was not reviewed after information of the celebrity status of the game and the popularity of its participants became known to CCNY officials but was based on a false application and estimates given by an individual student who, the evidence established, had no experience in the area of sponsoring events of this nature and exhibited a belligerent and total disdain for established authority.

This failure by CCNY officials to inquire further into the obviously inadequate and incomplete application and the impact of the celebrity status of the event upon estimated attendance has a direct connection to CCNY’s failure to foresee that the assignment of security for the event of the 28th was insufficient. Not only should CCNY officials have been aware of the necessity of more security personnel because of the celebrity status of the event, other factors, such as CCNY’s experience with the celebrity basketball game of December 20, 1991 which, Araouzos testified, resulted in a full-capacity crowd in the gym and his subsequent complaint to Charles and Delaney that security that evening was insufficient, should have prompted CCNY officials to re-evaluate the amount of security required for the December 28 game. Araouzos’ advice went unheeded since no serious problems had resulted from the lack of security on December 20. CCNY’s officials’ security concerns for the December 28 game should have been further heightened when, prior to the game, it was learned that flyers advertising the event were being widely distributed throughout the campus (testimony of Araouzos, Delaney & Lt. Negron) and that the celebrities mentioned in the flyers were popular heavy rappers, namely Puff Daddy & Heavy D. Had CCNY officials followed the standards outlined in the Handbook, the sale and distribution of the tickets for the event would have been controlled by the college, thereby giving college officials a day-to-day update of the number of tickets being sold and an opportunity to re-evaluate the security needs based on updated information for expected attendance. Had these standards been complied with, the information relating to expected attendance would have been readily available to CCNY officials and, with proper communication and coordination between the various departments as required by the college’s standards (see, Araouzos’ testimony 4 Exh. 16 [p 7 Exh. A from chart]), a better attendance estimate by the school could have been made and more accurate information could have been provided to the NYPD in order for them to better determine the amount of security required for proper crowd control. Certainly, CCNY compliance with the requirements stated in the amendments to the Handbook (Exh. 13), effective May 1, 1990, which required written regulations for the contracting of services and that all contracts contain sufficient language as to who had control over security arrangements for a particular event, would have avoided the confusion that resulted on the evening of December 28 concerning who was in charge of security. The testimony of the various witnesses, including Combs’, established that Combs’ security forces, which consisted of 20 people, were used at the two entrances to the building, in the foyer, and at the entrance of the gymnasium for the purpose of handling the sale and collection of tickets and to frisk the individuals entering the premises. It was Combs’ security forces, not CCNY’s, who were responsible for the orderly entrance into the Science Building. In taking over the entire security functions required to be performed by CCNY, Combs’ security forces also assumed responsibility for the orderly admittance into the building. Instead of performing this function, Combs’ security forces focused solely on precluding people without tickets from entering the building. No attention was given to crowd control or to the safety of those waiting to enter the building. Had CUNY officials not abandoned this responsibility to Combs’ security forces and had they adhered to existing standards, especially as to the requirement that CCNY officials be in charge of security, the congestion in the entranceway caused by the frisking of spectators would have been avoided. Furthermore, had CCNY requirements been followed, CUNY’s Pinkerton guards would have been in charge of security at the entranceway, lobby and stairwell, resulting in better communication with CCNY officials who, based on up-to-date knowledge of the temperament of the crowd, could have taken the necessary steps to avoid the stampede. Although David would have us believe that all the Pinkerton guards on duty for the 3:00 p.m. to 11:00 p.m. shift on December 28 were all reassigned to the gym, the roster listing the names of the Pinkerton guards and their posts that evening (see, Exh. A), as well as the testimony obtained by the Pinkerton guards who testified at trial, established that, at most, only four Pinkerton guards were originally assigned to the lobby and foyer areas of the Science Building. We note that this number did not even meet the number — five guards and one supervisor — recommended by David to Charles at the time of the filing of the application by Kirnon. The testimony of the witnesses and the documentary evidence in the case all support a scenario of careless indifference for the safety and welfare of individuals invited onto the campus, at considerable expense to themselves, to enjoy an evening of entertainment. The CCNY officials responsible for approving and coordinating this event were irresponsible in the manner in which they exercised their duties and, even at trial, passed the buck from one to the other as to who had the responsibility of seeing that all necessary security arrangements were made to safeguard the people attending the event of December 28. Even though there was a total breakdown in the coordination required to obtain sufficient information to make a timely estimation of the amount of security required for the event of the 28th, Delaney was, nonetheless, informed on the 27th that 1,500 tickets had been sold; that the school was being inundated with telephone inquiries from individuals wishing to obtain tickets; and that the callers were being advised that the event was sold out. On that same day, Delaney also learned that flyers were being circulated within the community advertising the event; that Puff Daddy and Heavy D were popular rappers and that tickets would not only be sold at the door but also at three other locations not controlled by CCNY. Yet, all these facts induced no other reaction on Delaney’s part other than to ask his assistant if security was taken care of and, as if indifferent to the critical information he had just received, being satisfied with a mere “yes” response. Delaney never bothered to determine whether David was aware of these new developments, nor did Delaney ever ask him to elaborate on his “yes” response. This verbal exchange which Delaney alleged he had with David on the 27th was contradicted by David, who testified that the last time he spoke to Delaney prior to the December 28 event had been a week before when Delaney, who had attended the December 20 event, reiterated that David should only use five guards and one supervisor for the December 28 event. On December 27, when David started getting bits of information about the popularity of the event as a result of the numerous phone calls being received from individuals seeking tickets to the event and the anticipated attendance of Puff Daddy and Heavy D, his reaction was to “panic a bit”. He attempted to reach Delaney to communicate the information to him, but was unable to contact him as he did not have his telephone number. David, realizing that five guards would not be sufficient to handle crowd control, tried, albeit unsuccessfully, to recruit, for use in the gym, additional Pinkerton guards or reassign from other posts the Pinkerton guards who would be reporting for duty on the 28th. David left it up to his supervisor to reassign the Pinkerton guards. The record reveals, however, that this was never done. It would appear that David’s sense of “panic” subsided rather quickly and his decision not to attend the event demonstrates his lack of concern. Not only were CCNY officials derelict in their duty concerning their plans for security and crowd control for the event of December 28, their actions or lack thereof when the crowd started to form and become unruly further contributed to the eventual disastrous melee which resulted in the deaths and injuries complained of. The situation at the door might have been alleviated by those CCNY officials who attended the event and had the authority to compel the enforcement of CCNY regulations against frisking and, in light of the gym’s limited capacity, to stop, early in the evening, the sale of tickets at the door. Instead, in their familiar cavalier fashion,, these CCNY officials attempted to shift the responsibility for crowd control to the NYPD by asking them for more assistance. Thus, CCNY officials who, as previously stated, had abandoned all of their responsibilities for security inside the building to Combs’ security forces, whose directive was to refuse admittance to anyone without a ticket, also abandoned, to the NYPD, their responsibilities for crowd control. After the crowd forced its way into the building, Combs’ security people, in an attempt to adhere to their policy of non-admittance by non-ticket holders, attempted to prevent entry into the gym by closing the only open door giving access to the gym and by placing behind the door a table which was used as leverage to force the door closed. All this occurred in the presence of Combs, Pinkerton guards, and some CCNY officials, none of whom attempted to prevent the door from being closed. Although Combs would have us believe he was caught up in the stampede, his presence in the stairwell at the time the stampede began was not corroborated by any of the witnesses who testified as to what happened at that location even though some of the testimony obtained was from Combs’ friends, one of whom, Nicole Levy, had personally been invited by Combs to attend the event. Police Officer Sean Harris, who, by attempting to reach the bottom of the stairwell by walking down the banister, placed himself in jeopardy in order to assist the injured, testified that when he reached the bottom of the stairwell, he had to push aside the table that was blocking the open door, and after falling through the door, into the gym, he saw Combs standing there with two women, and all three had money in their hands. This revelation places a strain on the credibility of Combs’ testimony that he was caught up in the melee and attempted to help the people who were trapped in the stairwell.

The proof submitted by the claimants has established by a preponderance of the credible evidence that the defendant in its capacity as the owner of the gymnasium breached its duty to provide “an adequate degree of general supervision of the crowd invited by exercising reasonable care against foreseeable dangers under the circumstances prevailing * * *” (Rotz v. City of New York, 143 AD2d 301, supra, at 304 [citation omitted]). It was reasonable for CCNY to foresee from the anticipated attendance that in the absence of adequate supervision and control, “disorder, unruliness, a melee or a riot could erupt from some cause ignited by the vagaries of myriad individuals ‘jammed together’ in a heightened atmosphere” (Rotz v. City of New York, supra at 305). CCNY officials were well aware of the problems that were developing prior to the evening of the event in that, by the 27th, CCNY officials obtained critical information that the number of people anticipated to attend the event of the 28th was going to exceed the 500 people originally anticipated. Having obtained this information, CCNY’s efforts to obtain additional security forces to handle the expected overflow were inadequate especially since, as Delaney and Elique testified, additional help was available. Under these circumstances, CCNY, prior to the 28th, should have made arrangements for additional security either by hiring additional security contractors or by alerting the NYPD that CCNY’s security was inadequate for the expected crowd and by requesting that the police bring on additional personnel to cover the event. Certainly, had adequate security been provided and had proper crowd control procedures been followed, the breaking of the doors and the stampede could have been prevented. It does not take an Einstein to know that young people attending a rap concert camouflaged as a “celebrity basketball game[FN7], who have paid as much as $20 a ticket, would not be very happy and easy to control if they were unable to gain admission to the event because it was oversold. The stampede brought on by this happening was in all respects a foreseeable consequence and was a direct result of the failure of CCNY to follow its standards in evaluating the application for use of the gymnasium before approving it and its failure to provide adequate security to supervise and control the crowd. The Court finds that claimants have by a preponderance of the credible evidence established the negligence of defendant, which negligence was a proximate cause of claimants’ injuries.

It is quite evident from the facts that Combs’ security forces were in charge of security at the doors of the entrance to the building housing the gym as well as in the foyer, the lobby, and the entrance to the gym itself, and it is also quite evident from these facts that when the stampede started, Combs’ security forces attempted to block the entrance to the gym by forming a blockade at the top of the stairwell, and when that didn’t succeed, Combs’ security forces in the gym closed the only open door and braced it closed with a table upon which one of Combs’ guards stood to leverage himself against the door to keep it closed. Combs’ security chief, in a desperate attempt to keep the people out of the gym, pulled out a gun and assailed the people with racial epithets. An assessment of the gym doors as shown in Exhibit 3 clearly reveals that the doors cannot be opened from the stairwell but only from inside the gym. used on this assessment, it is not unreasonable, from the evidence presented, to draw the inference that Combs’ forces knew that once the open door was closed, entry into the gym from the stairwell would be unattainable.

By closing the only open door giving access to the gym, Combs’ forces, who were fully aware of the crowd uncontrollably pouring down the stairwell, created something akin to a “dike,” forcing the people together like “sardines” squashing out life’s breath from young bodies even to the formidable size and stature of young Mr. Holloway. Their pounding and their cries for help did not dissuade Combs’ people from closing the door, precipitating the eventual deaths and injuries that occurred. Had common sense prevailed, Combs’ forces, upon seeing the dangerous condition unfolding in the stairwell, could simply have opened all the gym doors, thus averting the tragedy that ensued. It is quite evident from the actions of the head of Combs’ security forces — the man with the kufi — that he was more concerned with keeping nonpaying individuals from the gym than in the public’s overall safety.

The NYPD had assigned a detail of ten men, one sergeant, and a captain to handle an expected crowd of 2,500 people. When problems arose inside the Science Building, which housed the gymnasium, Sergeant Randall, the sergeant in charge of the detail, ordered his men inside the building to keep the crowd from entering. Eventually, however, the crowd broke through the doors and pushed its through the lobby and down the stairs. At that point, Captain Collins — Randall’s supervisor — ordered Randall and his men back outside to regain control of the crowd. Although no argument was made by CCNY that the NYPD owed a special duty to the claimants, CCNY did attempt to allocate proximate cause of claimants’ injuries to the failure of the police to take appropriate action when the crowd broke into the building through the doors they were guarding. On this point, suffice it to say that CCNY failed to establish by a fair preponderance of the evidence that the police voluntarily[FN8] assumed a duty that did not formerly exist and that their conduct under the circumstances presented amounted to conduct which progressed to a point “that inaction would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, [thereby creating] a relation out of which arises a duty to go forward” (Moch Co., Inc. v. Rensselaer Water Co., 247 NY 160, 167; see also, Bloom v. City of New York, 78 Misc2d 1077).

CCNY, however, did establish that Combs and Myers were negligent (1) in overselling the event; (2) in allowing their security forces to prevent the crowd from entering the gym by forcibly closing the only door which would have given the crowd access to the gym; and (3) by failing to take appropriate action to prevent the “damming” of people against the gym doors, and said chain of events constituted a proximate cause of the resulting deaths and injuries.

The Court finds that, besides CUNY, the injuries sustained by claimants were also proximately caused by the acts or omissions of Sean Combs and Dwight Myers. The Court also finds that the proportional responsibility of the only defendant who can be held answerable in damages before this Court is set at fifty (50) percent, and attributes the balance to Sean Combs and Dwight Myers, parties not before this Court.

Claimants have brought actions against Combs and Myers in the Supreme Court, and, as to these individuals — parties over whom jurisdiction in the Court of Claims is unattainable — based on the findings stated herein and the application of CPLA article 16, the Court finds them to be fifty (50) percent culpable (Humphrey v. State of New York, 60 NY2d 742; Derdiarian v. Felix Contracting Corp., 51 NY2d 308, 316; Leeds v. New York Telephone Co., 178 NY 118, 121). The Court reiterates its finding that there was no culpable conduct attributable to the claimants.

In an order issued March 19, 1997 by former Presiding Judge Christopher J. Mega, the captions of the claims were amended, sua sponte, to reflect The City University of New York as the only proper defendant. The Court, nonetheless, grants defendant’s motion, made at the close of claimants’ proof, to dismiss the claims as against the State of New York for failing to prove a prima facie case. All motions not heretofore ruled upon are now denied. A trial on the issue of damages will be scheduled at a conference which the Court will hold with the parties, at a date, time and place to be determined.

Let Interlocutory Judgments Be Entered Accordingly.

FN(1-5). Footnotes deleted in editing for publication.
FN6. Education Law Sec. 6203, which created CUNY, did not specifically authorize the creation of a police force with peace-officer status to preserve law and order on its campuses. Conversely, Education Law Sec. 355(7)(1) authorizes SUNY to form its own police force to “preserve law and order on [its campuses].” Elique was hired by CUNY for the purpose of researching the possibility of CUNY organizing its own police force instead of using contract security (see, Bass v. City of New York, 38 AD2d 407, 412-413, for discussion on what constitutes a police force classified as performing a governmental function).

FN7. CCNY’s policy as to the prohibition of this type of event on its campus is reiterated in the report to the Chancellor (Exh. 16, at 33), wherein it is stated: “The applications, submitted by the ESG President for the December 20th and December 28th events, were not only incomplete, but misrepresented the nature of the planned events which was contrary to City College policy banning musical performances in the gymnasium. The Vice President of Student Affairs indicated that had he known the true nature of these events, he would have prevented them from occurring. The ESG President did not seek the Vice President’s signature on the contract she signed with the outside promoter despite a place on the printed form for such an approval.

FN8. Here, under police policy, as stated in State’s Exhibit F, the police may enter premises without permission of the owner “where police are able to observe the existence of emerging circumstances independently, they may and do respond without waiting for information from property owner”‘ (Exh. G). Here, both Sgt. Randall and Officer Harris stated the condition in the foyer created a dangerous condition or was working its way to a situation that was dangerous. Thus, the police while on the premises were performing a duty required of them by police policy and were not in the foyer as volunteers.

1/21/99 NYLJ 30, (col. 4)