Zeppetelli v. 1372 Broadway, LLC

222 A.D.3d 813

201 N.Y.S.3d 236

Carol Ann ZEPPETELLI, appellant,

v.1372 BROADWAY, LLC, et al., respondents (and a third-party action).

2019–09321

Index No. 18615/98

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

Submitted—September 12, 2023

December 13, 2023

Jan Hudgins Riley, Parksville, NY, for appellant.

Barry, McTiernan & Moore LLC, New York, NY (Laurel A. Wedinger and Steven Aripotch of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, LILLIAN WAN, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Mary H. Smith, J.), dated May 10, 2019. The judgment, upon the granting of the defendants’ motion for a directed verdict at the close of the plaintiff's case at trial, is in favor of the defendants and against the plaintiff dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff allegedly was injured when she fell while descending a staircase between floors at her place of employment. She alleged that the accident occurred because the carpet covering the stairs was slippery. At trial, the Supreme Court granted the defendants’ motion to preclude the testimony of the plaintiff's expert engineer, Stanley Fein. The court then granted the defendants’ motion for a directed verdict at the close of the plaintiff's case and dismissed the complaint. The plaintiff appeals.

As a general rule, the admissibility of expert testimony on a particular point is addressed to the discretion of the trial court. The guiding principle is that 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 De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717 ; Martell v. Dorchester Apt. Corp., 208 A.D.3d 1183, 1184, 174 N.Y.S.3d 121 ; Curry v. Eastern Extension, LLC, 202 A.D.3d 907, 909, 159 N.Y.S.3d 684 ). The Supreme Court providently exercised its discretion in precluding Fein's testimony regarding the condition of the carpet, as his testimony would not have helped to clarify the issue of whether the carpet was too slippery in violation of American Society of Testing Materials (hereinafter ASTM) standards.

The opinion testimony of an expert must be based upon facts in the record or personally known to the witness. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion (see Ali v. Chaudhry, 197 A.D.3d 1084, 1086, 150 N.Y.S.3d 613 ; Johnson v. Robertson, 131 A.D.3d 670, 671, 15 N.Y.S.3d 457 ; Plainview Water Dist. v. Exxon Mobil Corp., 66 A.D.3d 754, 755, 888 N.Y.S.2d 521 ). Fein stated at trial that his opinion that the carpet was too slippery was based on ASTM D2047–17, which does not apply to carpets. There was no basis upon which Fein could opine that the 0.5 static coefficient of friction set forth in that standard, which only applied to polish-coated surfaces, also applied to carpeted surfaces such as the staircase where the plaintiff fell. In other words, the plaintiff failed to establish that Fein's opinions related to existing data and were the result of properly applied accepted methodology (see Guerra v. Ditta, 185 A.D.3d 667, 669, 127 N.Y.S.3d 148 ).

The plaintiff also had not given notice that she intended to rely on ASTM D2047–17...