Opinion
2002-05695.
Decided June 1, 2004.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Phelan, J.), entered June 6, 2002, which, upon a jury verdict, is in favor of the defendant and against her, dismissing the complaint.
Seiden Kaufman (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for appellant.
Berkman, Henoch, Peterson Peddy, P.C., Garden City, N.Y. (James Esposito and Robert A. Carruba of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., NANCY E. SMITH, GLORIA GOLDSTEIN, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law and as a matter of discretion, and a new trial is granted, with costs to abide the event.
We conclude that certain rulings by the trial court were erroneous and therefore reverse the judgment and grant a new trial.
The trial court limited the testimony of the plaintiff's proposed consultant in sports and recreational safety. This was error since "[p]roof of a generally accepted practice, custom or usage within a particular trade or industry is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence" ( Cruz v. New York City Tr. Auth., 136 A.D.2d 196, 199; see Trimarco v. Klein, 56 N.Y.2d 98, 105-107; Bailey v. Baker's Air Force Gas Corp., 50 A.D.2d 129, 132; Prince, Richardson on Evidence, §§ 4-603, 7-307 [Farrell 11th ed]; 3 Bender on New York Evidence § 7.04; Fisch on New York Evidence, § 203 [2nd ed]).
The trial court also precluded the plaintiff from eliciting testimony from her medical expert. This was error. The proposed testimony was offered to establish the cause of the plaintiff's injuries.
We also conclude that it was error for the trial court to have limited the plaintiff's examination of various witnesses as to where the accident occurred ( cf. Farrar v. Teicholz, 173 A.D.2d 674).
The plaintiff's remaining contentions are without merit.
PRUDENTI, P.J., SMITH, GOLDSTEIN and CRANE, JJ., concur.