Martell v. Dorchester Apt. Corp.

208 A.D.3d 1183

174 N.Y.S.3d 121

Joseph MARTELL, Jr., appellant,

v.DORCHESTER APT. CORP., et al., respondents.

2020–04505

Index No. 500170/17

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

Argued—June 16, 2022

September 14, 2022

Stefano A. Filippazzo, P.C. (Louis A. Badolato, Roslyn Harbor, NY, of counsel), for appellant.

Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Lorin A. Donnelly and Patrick F. Palladino of counsel), for respondents.

BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), entered June 11, 2020. The judgment, upon a jury verdict, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, with costs, the defendants’ motion in limine to preclude Stanley Fein from testifying is denied to the extent that Fein is permitted to offer testimony that the coefficient of friction of the subject stairway was not in accordance with American Society for Testing Materials standards, and the matter is remitted to the Supreme Court, Kings County, for a new trial.

The plaintiff allegedly was injured in the course of his employment delivering packages for UPS when he slipped and fell while descending a staircase in the defendants’ building. He claims that the steps upon which he fell appeared shiny and slippery. At trial, the Supreme Court granted the defendants’ motion in limine to preclude the plaintiff's expert, Stanley Fein, from testifying. Fein would have testified as to alleged Building Code violations and violations of the American Society for Testing Materials standards for the coefficient of friction. The jury found in favor of the defendants, and judgment was entered dismissing the complaint.

Generally, the admission of expert testimony is a matter that lies within the sound discretion of the trial court (see Jean–Louis v. City of New York, 86 A.D.3d 628, 928 N.Y.S.2d 310 ; Dulin v. Maher, 200 A.D.2d 707, 607 N.Y.S.2d 67 ). Expert 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 (see Curry v. Eastern Extension, LLC, 202 A.D.3d 907, 159 N.Y.S.3d 684 ; Goudreau v. Corvi, 197 A.D.3d 463, 152 N.Y.S.3d 485 ).

Here, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion in limine to preclude Fein from testifying. The court correctly found that the Building Code provisions set forth by Fein were inapplicable. However, this only absolved the defendants of the mandatory duty that such provisions might otherwise impose (see Zebzda v. Hudson St., LLC, 72 A.D.3d 679, 897 N.Y.S.2d 727 ; Swerdlow v. WSK Props. Corp., 5 A.D.3d 587, 772 N.Y.S.2d 864 ). The defendants had a continuing duty to maintain the property in a reasonably safe manner (see Swerdlow v. WSK Props. Corp., 5 A.D.3d at 588, 772 N.Y.S.2d 864 ). The absence of a violation of a specific code or ordinance is not dispositive of the plaintiff's allegations based on common-law negligence principles (see Robins v. City of Long Beach, 192 A.D.3d 709, 142 N.Y.S.3d 612 ; Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d 763, 142 N.Y.S.3d 92 ; Romero v. Waterfront N.Y., 168 A.D.3d 1012, 92 N.Y.S.3d 333 ). Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances (see Dougherty v. 359 Lewis Ave. Assoc., LLC, 191 A.D.3d at 764, 142 N.Y.S.3d 92 ; Romero v. Waterfront N.Y., 168 A.D.3d at 1013, 92 N.Y.S.3d 333 ).

Had Fein been permitted to testify, he could have addressed whether the coefficient of friction of the subject staircase, as measured during his inspection, was a departure from generally accepted customs and practices, and whether the defendants were negligent in failing to correct it (see Robins v. City...