Opinion
CA 03-01759.
Decided March 19, 2004.
Appeal from a judgment of the Supreme Court, Oneida County (Anthony F. Shaheen, J.), entered May 1, 2003. The judgment dismissed the complaint, upon a jury verdict, in a personal injury action.
FRANK POLICELLI, UTICA, HANCOCK ESTABROOK, LLP, SYRACUSE (KEVIN E. MC CORMACK OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FIX SPINDELMAN BROVITZ GOLDMAN, P.C., SYRACUSE (KENNETH M. ALWEIS OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Gloria Zammiello (plaintiff) when she fell on a tiled floor in a mall owned by defendant. Plaintiff appeals from a judgment entered upon a jury verdict of no cause for action, contending that she was deprived of a fair trial by the cumulative effect of alleged errors by Supreme Court. We affirm. We reject plaintiff's contention that the court improperly limited the testimony of plaintiffs' expert. "`[O]pinion evidence must be based on facts in the record or personally known to the witness . . . [The witness] cannot reach this conclusion by assuming material facts not supported by evidence'" ( Hugelmaier v. Town of Sweden, 144 A.D.2d 934, 935, lv dismissed 74 N.Y.2d 699, quoting Cassano v. Hagstrom, 5 N.Y.2d 643, 646, rearg denied 6 N.Y.2d 882). Here, the testimony of plaintiffs' expert on the element of causation was without the requisite factual basis and therefore "was `too speculative to constitute competent expert proof of causation'" ( Pascuzzi v. CCI Cos., 292 A.D.2d 685, 687). In addition, plaintiffs failed to establish precisely where plaintiff fell, and thus the court properly precluded their expert from testifying with respect to the existence of an allegedly dangerous condition.
Also contrary to plaintiff's contention, the court properly allowed defendant to present evidence concerning the lack of prior accidents in the general area where plaintiff fell. That evidence was "admissible to negate negligence because continued use over a long period of time without incident may indicate that the condition has been proven to be adequate or safe" ( Cassar v. Central Hudson Gas Elec. Corp., 134 A.D.2d 672, 674; see Orlick v. Granit Hotel Country Club, 30 N.Y.2d 246, 250; see also Thomas v. Kendall [appeal No. 2], 261 A.D.2d 964, 965). Such evidence is admissible where, as here, defendant establishes that the same allegedly dangerous condition had existed for a number of years ( cf. Thomas, 261 A.D.2d at 965; Cassar, 134 A.D.2d at 674). We further reject plaintiff's contention that the court erred in precluding plaintiffs from presenting evidence of accidents that occurred in other areas of the mall. The evidence presented by defendant concerning the lack of prior accidents was confined to the general area in which plaintiff fell, and thus defendant did not thereby open the door to evidence of accidents occurring in other areas of the mall ( see generally Cassar, 134 A.D.2d at 674).
We have reviewed plaintiff's remaining contentions and conclude that they are without merit.