Ghazala v. Shore Haven Apartment Del

214 N.Y.S.3d 747

Tanveer GHAZALA, et al., respondents,

v.SHORE HAVEN APARTMENT DEL, LLC, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 5, 2023

July 3, 2024

Dorf & Nelson LLP (Mauro Lilling Naparty LLP, Woodbury, NY [Seth M. Weinberg and Ashley N. Guarino], of counsel), for appellants.

Subin Associates, LLP (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen], of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, LARA J. GENOVESI, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated August 13, 2020. The order granted the plaintiffs’ motion to sever their respective damages claims for purposes of trial and denied the defendants’ motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiffs and against the defendants on the issue of liability in the interest of justice and for a new trial on the issue of liability.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying the defendants’ motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the plaintiffs and against the defendants on the issue of liability in the interest of justice and for a new trial on the issue of liability, and substituting therefor a provision granting that motion; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of liability, and thereafter for separate trials on the issue of damages, if warranted.

The plaintiffs allegedly were injured when the ceiling of a residential apartment collapsed on them. The plaintiffs commenced the instant action to recover damages for personal injuries against the defendants, Shore Haven Apartment Del, LLC, which owned the building in which the apartment was located, and Apartments Management Association LLC, which managed the building.

The matter proceeded to a jury trial, during which, the plaintiffs’ application to preclude the defendants’ expert from testifying, or alternatively, for a hearing pursuant to (Frye v. United States, 293 F. 1013, 1013–1014 [D.C. Cir.]) was granted to the extent that the expert was precluded from testifying. The jury thereafter returned a verdict in favor of the plaintiffs on the issue of liability.

Following the verdict, the plaintiffs moved for severance of their respective damages claims for purposes of trial. The defendants moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability in the interest of justice and for a new trial on the issue of liability. By order dated August 13, 2020, the Supreme Court granted the plaintiffs’ motion and denied the defendants’ motion. The defendants appeal.

[1] "Pursuant to CPLR 4404(a), a trial court has the discretion to order a new trial in the interest of justice" (Duma-n v. Scharf, 186 A.D.3d 672, 674, 129 N.Y.S.3d 137). "A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court’s rulings on the admissibility of evidence," among other things (Schuster v. Sourour, 207 A.D.3d 491, 493–494, 171 N.Y.S.3d 551, quoting Dunum v. Scharf, 186 A.D.3d at 674, 129 N.Y.S.3d 137).

[2–5] The defendants contend that they should have been granted a new trial based upon the Supreme Court’s improper preclusion of their expert witness, Andrew Yarmus. "[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 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717; see Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532). The expert must possess "the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v. Ward, 48 NY.2d at 459, 423 N.Y.S.2d 645, 399 N.E.2d 532). "The expert’s opinion, taken as a whole, must also reflect an acceptable level of certainty in order to be admissible" (Espinal v. Jamaica Hosp. Med. Ctr., 71 A.D.3d 723, 724, 896 N.Y.S.2d 429; see Matott v. Ward, 48 N.Y.2d at 460, 423 N.Y.S.2d 645, 399 N.E.2d 532).

Here, the defendants’ CPLR 3101(d) disclosure indicated that Yarmus, a professional engineer with experience in construction management and building and safety code compliance, would testify, inter alia, as to the materials and manner of construction of the ceiling at issue, as well as the manner in which ceilings so constructed may detach and collapse, allegedly, without a defect that is detectable so as to give notice of a dangerous condition. Contrary to the plaintiffs’ contention, Yarmus’s proposed testimony was neither so conclusory or speculative, nor without basis in the record, as to render it inadmissible (see Espinal v. Jamaica Hosp. Med. Ctr., 71 A.D.3d at 724, 896 N.Y.S.2d 429; Erbstein v. Savasatit, 274 A.D.2d 445, 446, 711 N.Y.S.2d 458; see also Owens v. Ascencio, 210 A.D.3d 686, 688, 178 N.Y.S.3d 530). Rather, any purported shortcomings in the proposed testimony went "to the weight to be given his testimony, not its admissibility" and could appropriately be explored on cross-examination (Martell v. Dorchester Apt. Corp., 208 A.D.3d 1183, 1185, 174 N.Y.S.3d 121; see Espinal v. Jamaica Hosp. Med. Ctr., 71 A.D.3d at 724, 896 N.Y.S.2d 429).

[6–8] As to the plaintiffs’ request for a Frye hearing with respect to Yarmus’s proposed testimony, "[t]he long-recognized rule of Frye … is that expert testimony based on...