Court’s Preclusion of Plaintiff’s Expert Leads to Reversal of Defense Verdict
Robins v City of Long Beach, 2021 NY Slip Op 01277 (App. Div., 2d Dept, 3/03/21)
When Wendy Robins was walking past a condominium building under construction in the seaside community of Long Beach, New York, she stepped onto a curb adjacent to an unfinished driveway apron, and fell. She sued the owner of the property, the general contractor, and the City of Long Beach. At the trial, the plaintiff wanted to have her expert engineer testify about industry standards for the construction of sidewalks, but the judge precluded the expert’s testimony.
Based in part on evidence that the area where plaintiff fell did not violate any City code or ordinance, a Nassau County jury returned a defense verdict. But the Appellate Division reversed.
Although the decision as to whether or not to admit expert testimony lies in th capable of forming a correct judgment upon it because there are questions requiring experience in science, art, or trade which ordinary people do not possess. Usually, in cases involving slips and trips on sidewalks or floors, the average juror can look at photos and decide for themselves whether or not the situation appears hazardous. It would appear that in this particular case, that’s how the trial judge viewed it.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau Count (Anthony L. Parga, J.), dated July 9, 2018. The judgment, upon a jury verdict on the issue of liability, is in favor of the defendants EBM Long Beach, LLC, and Aqua Construction Corp. and against the plaintiffs dismissing the complaint insofar as asserted against those defendants.
ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, with costs, the complaint insofar as asserted against the defendants EBM Long Beach, LLC, and Aqua Construction Corp. is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of liability.
The plaintiff Wendy Robins (hereinafter the injured plaintiff) fell after stepping onto a curb adjacent to an unfinished driveway apron leading to an underground parking garage in a condominium building that was under construction in Long Beach. The injured plaintiff, and her husband suing derivatively, commenced this action against, among others, the defendants EBM Long Beach, LLC, the owner of the property, and Aqua Construction Corp., the construction company at the site (hereinafter together the defendants). After a trial on the issue of liability, the jury found in favor of the defendants. Thereafter, the Supreme Court entered a judgment dismissing the complaint insofar as asserted against the defendants. The plaintiffs appeal.
“[E]xpert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (De Long v County of Erie, 60 NY2d 296, 307; see Christoforatos v City of New York, 90 AD3d 970, 970). The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see De Long v County of Erie, 60 NY2d at 307; see Christoforatos v City of New York, 90 AD3d at 970).
Here, the Supreme Court improvidently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert witness as to industry safety standards relating to the construction of sidewalks (see Zebzda v Hudson St., LLC, 72 AD3d 679, 680-681). Contrary to the [*2]defendants’ contention, the record shows no appreciable difference between the unfinished driveway apron where the injured plaintiff fell, which was left open to pedestrians, and the adjoining unfinished sidewalks, which were barricaded by a fence and barrels. Moreover, the absence of a violation of a specific code or ordinance is not dispositive of the plaintiffs’ allegations based on common-law negligence principles (see Romero v Waterfront N.Y., 168 AD3d 1012, 1013; Alexis v Motel Oasis, 143 AD3d 926, 927). Had the plaintiffs’ expert been permitted to testify, he could have addressed whether, under the circumstances presented, the defendants’ failure to barricade the driveway apron or otherwise warn pedestrians of its unfinished condition was a departure from generally accepted customs and practices and whether the defendants were negligent in failing to do so (see Zebzda v Hudson St., LLC, 72 AD3d at 681). Accordingly, we remit the matter to the Supreme Court, Nassau County, for a new trial on the issue of liability.
DILLON, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.
