Opinion
2011-12-27
Demetri CHRISTOFORATOS, appellant, v. CITY OF NEW YORK, et al., respondents, et al., defendant.
Lisa M. Comeau, Garden City, N.Y. (Ronemus & Vilensky LLP [Michael B. Ronemus], of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Margaret G. King, and Ellen Ravitch of counsel), for respondents City of New York and New York City Department of Parks and Recreation.
Lisa M. Comeau, Garden City, N.Y. (Ronemus & Vilensky LLP [Michael B. Ronemus], of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath, Margaret G. King, and Ellen Ravitch of counsel), for respondents City of New York and New York City Department of Parks and Recreation. Martyn, Toher & Martyn, Mineola, N.Y. (Thomas M. Martyn of counsel), for respondent A Royal Flush, Inc.THOMAS A. DICKERSON, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Kerrigan, J.), entered September 9, 2010, which, upon, inter alia, the granting of the motion of the defendant A Royal Flush, Inc., pursuant to CPLR 4401 for judgment as a matter of law made at the close of the evidence, upon a jury verdict in favor of the defendants City of New York and New York City Department of Parks and Recreation on the issue of liability, and upon the denial of the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants City of New York, New York City Department of Parks and Recreation, and A Royal Flush, Inc., and against him dismissing the complaint insofar as asserted against those defendants.
ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff was entering a portable restroom belonging to the defendant A Royal Flush, Inc., which had been installed on an area of grass in a park maintained by the defendant City of New York and the New York City Department of Parks and Recreation, when he slipped and fell. The plaintiff asserted that the slippery condition of an area bare of grass in front of the restroom door caused him to fall.
At trial, the plaintiff sought to offer the testimony of an expert on the issue of the placement of the portable restroom in a location where access required walking on grass rather than a paved surface, but was precluded from offering the expert's testimony.
Expert testimony has been found necessary when it helps to clarify an issue which calls for professional or technical knowledge, possessed by an expert and beyond the understanding 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; Jean–Louis v. City of New York, 86 A.D.3d 628, 928 N.Y.S.2d 310; Mariano v. Schuylerville Cent. School Dist., 309 A.D.2d 1116, 766 N.Y.S.2d 388). 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 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717; Leonick v. City of New York, 120 A.D.2d 573, 502 N.Y.S.2d 60).
Contrary to the plaintiff's contention, the placement of the portable restroom so that access required walking on grass, where pedestrian traffic could result in bare areas which became wet and muddy after rain, was not beyond the understanding of the typical juror ( see De Long v. County of Erie, 60 N.Y.2d at 307, 469 N.Y.S.2d 611, 457 N.E.2d 717; Franco v. Muro, 224 A.D.2d 579, 638 N.Y.S.2d 690; cf. Jean–Louis v. City of New York, 86 A.D.3d 628, 928 N.Y.S.2d 310). The plaintiff's contention that his expert should have been permitted to testify as to alleged violations of city and industry safety regulations is without merit, as the plaintiff failed to offer proof that any safety code or regulation applied ( see Zebzda v. Hudson St., LLC., 72 A.D.3d 679, 897 N.Y.S.2d 727; Ercegovic v. P & T Mgt. Co., LLC, 44 A.D.3d 995, 843 N.Y.S.2d 847). Consequently, the Supreme Court properly precluded the plaintiff's expert from testifying ( see De Long v. County of Erie, 60 N.Y.2d at 307, 469 N.Y.S.2d 611, 457 N.E.2d 717; Mariano v. Schuylerville Cent. School Dist., 309 A.D.2d 1116, 766 N.Y.S.2d 388; Franco v. Muro, 224 A.D.2d 579, 638 N.Y.S.2d 690; Leonick v. City of New York, 120 A.D.2d 573, 502 N.Y.S.2d 60).
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict by any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163; Jean–Louis v. City of New York, 86 A.D.3d 628, 928 N.Y.S.2d 310; Dunnaville v. Metropolitan Tr. Auth. of City of N.Y., 68 A.D.3d 1047, 890 N.Y.S.2d 356). Based on the evidence submitted to the jury, its determination that the defendants City of New York and New York City Department of Parks and Recreation were not negligent was not contrary to the weight of the evidence ( see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 735, 810 N.Y.S.2d 121, 843 N.E.2d 748; Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795; Dunnaville v. Metropolitan Tr. Auth. of City of N.Y., 68 A.D.3d 1047, 890 N.Y.S.2d 356).