Opinion
DOCKET NO. A-6123-09T4 DOCKET NO. A-0106-10T4
03-06-2012
JAMES G. GRIFFIN, SR. and MARYANN L. GRIFFIN, as Guardians of JAMES G. GRIFFIN, JR. and JAMES G. GRIFFIN, SR. and MARYANN L. GRIFFIN, individually, Plaintiffs-Appellants, and THE UPS FLEXIBLE BENEFITS PLAN, Plaintiff/Intervenor-Appellant, v. MARCIE G. ZAGE, JEFFREY P. ZAGE, and BOROUGH OF OAKLAND, Defendants, and COUNTY OF BERGEN,Defendant-Respondent.
Nancy E. Lucianna argued the cause for appellants James G. Griffin, Sr. and Maryann L. Griffin, as guardians and individually (Law Offices of Nancy E. Lucianna, P.C., attorneys; Ms. Lucianna and Sara H. Bernstein, on the briefs). Robert L. Hollingshead argued the cause for appellant The UPS Flexible Benefits Plan (Day Pitney, LLP, attorneys; Mr. Hollingshead and John D. Coyle, on the briefs). Thomas A. Morrone argued the cause for respondent County of Bergen (Chasan Leyner & Lamparello, P.C., attorneys; Mr. Morrone, of counsel and on the briefs; Kirstin Bohn, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Motion for reconsideration granted.
Before Judges Payne, Reisner and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-8790-07.
Nancy E. Lucianna argued the cause for
appellants James G. Griffin, Sr. and Maryann
L. Griffin, as guardians and individually
(Law Offices of Nancy E. Lucianna, P.C.,
attorneys; Ms. Lucianna and Sara H.
Bernstein, on the briefs).
Robert L. Hollingshead argued the cause for
appellant The UPS Flexible Benefits Plan
(Day Pitney, LLP, attorneys; Mr. Hollingshead
and John D. Coyle, on the briefs).
Thomas A. Morrone argued the cause for
respondent County of Bergen (Chasan Leyner &
Lamparello, P.C., attorneys; Mr. Morrone, of
counsel and on the briefs; Kirstin Bohn, on
the briefs).
PER CURIAM
James Griffin, Jr. suffered severe injuries as the result of a motor vehicle accident on September 15, 2006, that rendered him incapacitated and unable to recall how the accident occurred. His parents, plaintiffs James Griffin, Sr. and Maryann Griffin, filed a complaint as his guardians and individually against defendants Borough of Oakland (Borough) and County of Bergen (County), alleging that the manner in which they designed, constructed and maintained the roadway where the accident occurred created a dangerous condition—a large pool of water—which was a proximate cause of the accident and Griffin's injuries. The UPS Flexible Benefits Plan (UPS) intervened in the matter to recover the medical benefits it paid to or on behalf of Griffin.
Plaintiffs also sought damages against defendants Marcie Zage and Jeffrey Zage, the driver and owner, respectively, of the other vehicle involved in the accident. Plaintiffs settled with the Zages on July 26, 2010.
UPS is a partially self-insured employee welfare benefit plan within the meaning of §3(1) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), 29 U.S.C.A. § 1002(1), sponsored by United Parcel Service of America, Inc.
By order dated May 12, 2010, the trial judge granted summary judgment to the County and dismissed the complaint with prejudice. The judge concluded that plaintiffs failed to demonstrate through competent evidence that a dangerous condition existed on the roadway on the day of the accident and caused the accident. In these consolidated appeals, plaintiffs and UPS appeal from the May 12, 2010 order, and from the order entered on June 25, 2010, which denied their joint motion for reconsideration. We reverse.
The judge also granted summary judgment to the Borough. Plaintiffs and UPS do not appeal from that ruling.
The accident occurred on Breakneck Road in Oakland. Breakneck Road is a two-lane county road that runs north and south from Longhill Road in Oakland and becomes Berdan Avenue at the Township of Wayne border. The lanes are divided by a double yellow line.
There is evidence of a water drainage problem on Breakneck Road. For example, the Borough's 1982 Design Report on Longhill and Breakneck Roads indicates that Breakneck Road has "intermittent closed systems" for drainage; however, "most of these small systems appeared inoperable, (i.e. silted basins, plugged pipes, etc.), effectively leaving Breakneck Road to drain overland." In 1987, G.T., who then owned the property located at 134 Breakneck Road, complained to the County about water collecting on the roadway in front of his home. As a result of that complaint, the County became aware there was a wet weather accident problem in the area of the property caused by water and ice developing on the roadway, which was apparently caused by clogged catch basins on the east side of the roadway.
We use initials to identify the property owners in order to protect their identity.
In 2001, W.V., who owned the property located at 146 Breakneck Road, complained to the County about a clogged storm drain opposite his property. County workers who responded to the complaint noted that this was a "bad location" on the roadway, and that when they tried to clean the drain they noticed the pipe was broken. Also in 2001, the County said it would inspect the area of 134 to 146 Breakneck Road in heavy rain to determine if flooding occurred; however, there is no evidence that this inspection occurred.
In 2004, the County received two complaints about water conditions at 134 Breakneck Road, one about two clogged catch basins "filled to [the] top with water[,]" and the other about a berm in need of repair. On July 24, 2006, W.V. again complained to the County that the basins between his property and 134 Breakneck Road were not taking water. Although an inspection revealed that the catch basins were filled with debris and had to be cleaned and flushed, no repairs were made until September 27, 2006.
The accident occurred at approximately 2:00 p.m. on September 15, 2006. A meteorological expert reported that approximately 1.40 to 1.50 inches of rain fell in the Oakland area between 2:00 to 3:00 a.m. on September 14, 2006, and 2:00 p.m. on September 15, 2006. The expert concluded that ground surfaces were wet from the ongoing rain, and this significant rainfall "would have been enough to cause some minor road flooding including ponding and pooling of water in poorly drained areas."
Griffin was driving his vehicle north on Breakneck Road. As he approached 134 Breakneck Road, he lost control of his vehicle, crossed over the double yellow line, and collided with a 1999 Toyota Land Cruiser driven by defendant Marcie Zage in the southbound lane near 126 Breakneck Road, which was approximately one-hundred and fifty feet from where Griffin lost control of his vehicle. The vehicles came to rest near the driveway of 126 Breakneck Road.
An eyewitness, Susan O'Grady Lister, said that she was traveling two to four car lengths behind Griffin's vehicle for five to ten minutes prior to the accident, Griffin operated his vehicle in a normal manner, and he was traveling at approximately thirty to thirty-five miles per hour. Lister did not recall anything unusual about Griffin's driving until "he made an extremely fast winding kind of turn[,]" "an abrupt left turn." He "almost seemed out of control[,]" and she thought "something happened to him, like a heart attack." She did not recall whether Griffin's brake lights came on before he made the turn, or whether his vehicle slid in any direction or swerved. She also could not pinpoint the spot where the collision occurred, but recalled that the two vehicles involved came to rest by a driveway. Although she did not see anything in the road or anything about the condition of the road that would have caused Griffin's vehicle to make an abrupt left turn, she did not recall if it was raining, whether the road was wet or dry, or whether Griffin's vehicle came into contact with anything before the accident.
The posted speed limit where the accident occurred was forty miles per hour.
Zage said that she was at the crest of the hill on Breakneck Road traveling south at forty miles per hour when she saw Griffin's vehicle "shooting across the yellow line perpendicular to [her] car in [her] lane." It appeared as if Griffin "was turning into" the driveway at 126 Breakneck Road. Zage applied her brakes, but could not avoid the collision. The impact occurred just before the driveway at 126 Breakneck Road. It had rained the day of the accident and the road was wet, but Zage did not recall seeing any puddles in the area before the collision occurred.
R.S. and his wife, K.S., have resided at 126 Breakneck Road for over thirty-eight years. According to R.S. there were approximately twelve accidents per year in the area in front of his property, many of which occurred when it rained. He explained that
[w]hen it rains there is a water runoff problem from the hill across the street that runs off onto the roadway and causes a slippery roadway and a hazardous condition for cars. The water often runs in front of my house across the roadway and cars hit the water and lose control and cross over the roadway and into my yard.Also, every time it rained, puddles of water formed and flowed from the east side of Breakneck Road to the west side in the vicinity of his driveway, and the puddles vary in size depending on the amount of precipitation and time of year. Other than tree trimming, R.S. had not seen any road work performed by the County. He was not at home when the accident occurred. When he arrived home he saw that the road appeared wet, but the rain had subsided and "things were drying up[.]"
According to K.S., who was at home when the accident occurred, it had rained that day and there was water on the roadway when the accident occurred. She said that
[t]here have been dozens of accidents in front of [her] house and many of them occur when it has been raining. The road in front of [her] house becomes very slippery due to water running off from the hill across the street and it runs across the roadway. The water runoff condition has been a problem for as long as [she has] lived [t]here.She explained that a clogged pipe running from the mountain across the street causes sheets of water to run off the hill. K.S. agreed that a photograph taken by a forensic photographer on March 29, 2009 (the March 29, 2009 photograph) accurately depicted the roadway surface, the water sheeting, and how the roadway appeared around the time of September 2006. It also accurately depicted the way the water looked on the roadway after it rained and it looked that way at and around the time of September 2006 after it rained.
It had rained approximately .44 inches on March 29, 2009, which was approximately one-third of the amount of rain that fell during the period before the accident. The photograph showed a large pool and ponding of water on the northbound lane of Breakneck Road approximately one-hundred and fifty feet south of the driveway at 126 Breakneck Road, which is the approximate spot where Griffin lost control of his vehicle.
J.R., who has resided at 134 Breakneck Road since 1990, said that water pools on Breakneck Road any time "you get a good rain," "[the water] just runs everywhere when it is bad[,]" the size of the puddles varies depending on the amount of precipitation, and "[t]here is water on both sides of the road depending on the severity of the rain." She did not recall observing the road conditions in September 2006, but said that every time it rains "[t]here is pooling [of water] everywhere[,]" "if it rains, water pools on Breakneck Road[,]" and "[s]ometimes it will be deep enough that when you drive through it, you will splash somebody that's walking there." Also, "[t]here have been many motor vehicle accidents in front of [her] house and in front of [her] neighbor[s'] house [at] 146 and 126 Breakneck Road." She complained to the County "on numerous occasions concerning a water drainage problem that runs from across Breakneck Road from the east side." She agreed that the March 29, 2009 photograph accurately depicted the roadway surface, the water sheeting, and how the roadway appeared around the time of September 2006. It also accurately depicted the way the water looked on the roadway after it rained and it looked that way at and around the time of September 2006 after it rained.
Detective Mark Piercy of the Borough of Oakland Police Department, who responded to the accident scene, said that it had rained the day of the accident and the road was wet. He did not see any puddles on the roadway near where the vehicles came to rest in the driveway at 126 Breakneck Road. However, he did not inspect the surrounding area. He admitted that a photograph of the accident scene taken by the Oakland Police shortly after it had occurred showed some puddles in the foreground.
Investigators Ken Brown and Robert Ryan from the Bergen County Prosecutor's Fatal Accident Investigation Unit (FAIU) arrived at the accident scene at approximately one hour after the accident occurred. Brown said that the road was wet, but he did not recall seeing any puddles or water accumulation on the roadway. Ryan said that it was raining lightly and the road was wet and slippery when they arrived. Although Ryan did not see any puddles in the roadway at the collision point, he saw a puddle in the driveway at 126 Breakneck Road. He conducted a tire friction coefficient test and obtained a coefficient of friction (COF) reading of approximately .73, which established that the road was still slippery.
The Borough's Police Chief, Edward Kasper, also responded to the accident scene. He was unaware of any drainage problems on Breakneck Road; however, he acknowledged that several accident reports from the Oakland Police Department indicated there had been flooding and wet weather accidents on Breakneck Road in the past.
Plaintiffs' engineering expert, Ira Kuperstein, Ph.D., rendered several reports. He found that Griffin lost control of his vehicle, went into a yaw, and crossed over into oncoming traffic due to the friction differential caused by pooled water on the roadway. He concluded that improper drainage of the roadway and lack of maintenance of drainage ditches created a dangerous condition, the dangerous condition created a risk reasonably foreseeable to the County, which was responsible for maintaining the roadway, the County had actual or constructive notice of the dangerous condition, and the dangerous condition was a proximate cause of the accident and Griffin's injuries. He also concluded that at a relatively low cost, the County could have "quickly and easily" eliminated the dangerous condition through maintaining proper drainage along the roadway, and "its failure to properly maintain the roadway under the subject conditions was palpably unreasonable." He further concluded that "a 'design defect,' and associated dangerous condition, existed with respect to the drainage on to, and off, Breakneck Road; and . . . emergency signage . . . should have been placed, and the absence of same, given the subject dangerous condition, and notice thereof, was palpably unreasonable[,]" and "turf build-up and debris in the probably pre-existent drainage ditch caused water to run across the road, rather than along side of it, and was directly and proximally causative of the subject accident."
At his deposition, Dr. Kuperstein explained that the pool of water shown in the March 29, 2009 photograph measured approximately fifty to seventy-five feet long and twelve and one-half feet wide, and that the pool of water on the roadway at the time of the accident would have been at least the same or greater size because more rain had fallen that day. He also explained that water would not flow across the roadway if there had been a functional ditch at the time of the accident and/or if the roadway had been properly crowned so that water would not flow across the roadway.
In February 2010, prior to the completion of discovery, the County and Borough filed motions for summary judgment. In March 2010, plaintiffs filed a motion to re-open and extend discovery in order to obtain a new expert's report due to Dr. Kuperstein's death. By order dated April 1, 2010, the trial judge re-opened and extended discovery to June 30, 2010, and required plaintiffs to serve a new expert's report by May 7, 2010. The judge placed no restrictions on the new expert.
The judge also permitted defendants to serve a responsive expert's report by June 7, 2010, and to depose plaintiffs' new expert by June 30, 2010, and set a July 19, 2010 trial date.
On April 16, 2010, a different judge heard oral argument on the summary judgment motions. The judge never asked plaintiffs' counsel whether the court should hear the motion or wait until the new expert rendered a report. The judge merely said that the new report could not change the theories of the case.
Plaintiffs timely served a new expert report from Steven Batterman, Ph.D. Dr. Batterman's opinions as to the cause of the accident were consistent with Dr. Kuperstein's opinion that a negligently maintained roadway and drainage problem caused the accident. Dr. Batterman relied on the same factors on which Dr. Kuperstein had relied, except he also reviewed videos taken on March 13 and April 26, 2010, during rainfalls similar to that which occurred here. The videos showed puddling or ponding of water on the northbound lane of Breakneck Road, the flow of water across the two lanes from east to west due to the lack of proper drainage on the east side of the northbound lane, and accumulation of water on the east edge of the northbound lane. Dr. Batterman concluded that
1.18 inches of rain fell on March 13, 2010, and 1.83 inches fell on April 26, 2010.
The water puddles or ponds across the entire northbound lane in the vicinity of and north of the northerly chevron sign, and also ponds along the easterly portion of the northbound lane past the Welcome to Oakland sign. Along the easterly portion of the lane[,] mud and gravel [deposited by water runoff], including broken asphalt, may also be present, and were present on the date of my inspection. Water flows across the northbound lane due to the fact that proper drainage does not occur along the easterly side of the road. In my opinion this is due to the lack of properly functioning drainage ditches along the east side of the northbound lane, which the County does not deny exist, and which have not been properly maintained and have filled in over the years. Thus the water flows across the roadway instead of being channeled away towards a functioning catch basin, which also may not have existed according to the historical evidence.He further concluded that Griffin's "vehicle went into a counterclockwise yaw to the left due to an overcorrection induced by his vehicle tending to or becoming destabilized to the right as a result of the defective surface drainage problem on Breakneck Road." He emphasized "that but for the surface drainage problem caused by a lack of roadway maintenance, the vehicle destabilization requiring a corrective steering maneuver would not have occurred and the accident would have been avoided."
In a May 12, 2010 written opinion, the judge found that R.S. "could not honestly state if any water was on the roadway at the time of the accident[,]" K.S. "did not go out to the road at all[,]" J.R. "did not observe any puddles on the date of the accident[,]" Zage did not recall any puddles, Officers Ryan, Brown and Piercy did not observe any puddles of water on the roadway, and Lister said it was not raining at the time of the accident and did not observe any ponding of water. The judge also found that Dr. Kuperstein could not opine as to the depth of the water on the day of the accident, or explain why Griffin lost control of his vehicle while other vehicles did not lose control. The judge concluded that "under the totality of circumstances, . . . a reasonable factfinder cannot conclude that plaintiffs have demonstrated through competent evidence that a dangerous condition, the ponding of water measuring approximately twelve and a half feet by fifty to seventy-five [feet] long existed on Breakneck Road on September 15, 2006 at 2 p.m. and caused the accident which injured [Griffin]."
Plaintiffs and UPS moved for reconsideration. They asked the judge to consider Dr. Batterman's report to determine whether there was a genuine issue of material fact about the existence of water on Breakneck Road at the time of the accident. They argued that evidence of "whether or not [witnesses] observed water at the scene is misleading, because they only looked at the area of the collision. They did not look at the area where [Griffin] lost control of the car[,]" and claimed that Dr. Batterman's report filled that gap by concluding that there was water on the road at the time of the accident at the spot where Griffin lost control of his vehicle, not necessarily at the point of the collision. Plaintiffs also argued that Dr. Batterman based his report on new evidence—the two videos—that Dr. Kuperstein did not have.
The judge declined to consider Dr. Batterman's report. He denied the motion, finding that Lister never said that there was a puddle, and that
if there was a puddle that was alleged to be 75 feet in width, and an inch to an inch and a half in depth, that she would have noticed that. Especially when asked if there were anything strange about the conditions of the road. That hasn't changed. There's no new evidence that would suggest that there's something different in that regard.This appeal followed.
On appeal, plaintiffs argue that they raised a genuine issue of material fact that a dangerous condition existed on Breakneck Road at the time of the accident, and the judge failed to afford them all favorable inferences, improperly engaged in factfinding, and relied solely on evidence favorable to the County. UPS argues that the judge improperly weighed the evidence and factually determined that no dangerous condition existed, and disregarded Dr. Kuperstein's opinion that a pool of water existed on the roadway at the time of the accident and proximately caused the accident.
We decline to address the County's contentions, raised for the first time on appeal, that UPS is barred from asserting any claims against the County, and Dr. Kuperstein rendered a net opinion. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997). We also will not consider documents the County included in its appendix that were not presented to the trial judge. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).
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Our review of a ruling on summary judgment involving the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, is de novo, applying the same legal standard as the trial court. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005). Thus, we consider whether "'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Id. at 490; (quoting R. 4:46-2(c)). "[A] party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raise sufficient credibility issues 'to permit a rational factfinder to resolve the alleged disputed issues in favor of the non-moving party.'" D'Amato ex rel. McPherson v. D'Amato, 305 N.J. Super. 109, 114 (App. Div. 1997) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
The trial court's "'function is not . . . to weigh the evidence and determine the truth . . . but to determine whether there is a genuine issue for trial.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d. 202, 212 (1986)). To determine that, the trial judge must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. The judge must assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
If there is "a single, unavoidable resolution of the alleged disputed issue of fact," then the issue is not "genuine." Id. at 540. If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
To establish a public entity's liability for an injury caused by its property, the plaintiff must establish the following elements:
that the property was in dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:The plaintiff must also establish that the action the entity took to protect against the condition or the failure to take such action was palpably unreasonable. Ibid. The TCA defines a "dangerous condition" as a "condition of property that creates a substantial risk of injury when such property is used with due care in a manner in which is reasonably foreseeable that it will be used." N.J.S.A. 59:4-1(a).
a. a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
b. a public entity had actual or constructive notice of the dangerous condition under section 59:4-3 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
[N.J.S.A. 59:4-2.]
"Whether a dangerous condition exists [on public property] is ultimately a question for the jury." Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 188 (2002); see also Roe ex rel. M.J. v. N.J. Transit Rail Operations, Inc., 317 N.J. Super. 72, 77-78 (App. Div. 1998) (stating that whether public property was in a dangerous condition was a question for the jury), certif. denied, 160 N.J. 89 (1999). Thus, the question is whether a reasonable jury could conclude that the plaintiff "demonstrated that the property was in a 'dangerous condition.'" Vincitore v. Sports & Expo. Auth., 169 N.J. 119, 124 (2001).
Accepting plaintiffs' facts as true and viewing them in a light most favorable to plaintiffs, which the trial judge failed to do, we conclude that plaintiffs have raised a genuine issue of material fact sufficient to withstand summary judgment. See R. 4:46-2(c); Brill, supra, 142 N.J. at 523. We first note that the judge made incorrect factual findings. Lister, J.R., and Brown did not say that they saw no ponding or puddles of water on the roadway. Lister and Brown said they did not recall if there was a ponding or puddles of water on the roadway, and J.R. said she did not recall observing the road conditions in September 2006. In other words, these witnesses did not know one way or the other if there was a ponding or pooling of water on the roadway on the day of the accident.
Also, Lister also did not say it was not raining at the time of the accident. She said she could not recall if it was raining or whether the road was wet or dry. R.S. said the road appeared wet, and K.S. said the roadway was wet when the accident occurred.
The judge also ignored the fact that no witness had observed or inspected the roadway at the point where Griffin lost control of his vehicle to see if there was a ponding or pooling of water there. Accordingly, it is for the jury to assess the credibility of any witness statement indicating that there was no ponding or puddle of water on the roadway at the time of the accident. See Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 12-13 (App. Div. 2007) (holding that "[i]n the context of a summary judgment motion, the judge does not weigh the evidence or resolve credibility disputes. These functions are uniquely and exclusively performed by a jury.")
That being said, we are satisfied that there is ample circumstantial and expert evidence on which a jury could reasonably find that a dangerous condition—a large pool of water—existed in the northbound lane of Breakneck Road at the time of the accident at the point where Griffin lost control of his vehicle, which proximately caused the accident and Griffin's resulting injuries. There is no dispute that there was a substantial rainfall in Oakland in the twenty-four hour period prior to the accident. There is evidence that whenever it rains, water pools in the area where Griffin lost control of his vehicle, there have been prior water-related accidents in that area, and the County received complaints about water pooling problems in that area. There is also evidence that improper drainage of the roadway and lack of maintenance of drainage ditches may have caused the pooling. Although the judge did not reach the issues of proximate cause and actual or constructive notice, our review of the record reveals that plaintiff provided sufficient, legally competent evidence on both issues to survive summary judgment. Accordingly, summary judgment was improperly granted.
Having reached this conclusion, we need not address the denial of plaintiffs' motion for reconsideration. However, we make the following brief comment. The trial judge re-opened and extended discovery, permitted plaintiffs to serve a new expert report, and placed no restriction on the new expert. Accordingly, plaintiffs may rely on Dr. Batterman's expert report and the videos he reviewed in rendering his opinions.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION