Courts Preclusion of Plaintiff's Expert Leads to Reversal of Defense Verdict: Robins v City of Long Beach, 2021 NY Slip Op 01277 (App. Div., 2d Dept, 3/03/21).

• Author: Rogak, Lawrence N.
• Position: [COURTSIDE]

* When Wendy Robins was walking past a condominium building under construction in the seaside community of Long Beach, New York, she stepped onto a curb adjacent to an unfinished driveway apron, and fell. She sued the owner of the property, the general contractor, and the City of Long Beach. At the trial, the plaintiff wanted to have her expert engineer testify about industry standards for the construction of sidewalks, but the judge precluded the expert's testimony.

Based in part on evidence that the area where plaintiff fell did not violate any City code or ordinance, a Nassau County jury returned a defense verdict. But the Appellate Division reversed.

Although the decision as to whether or not to admit expert testimony lies in th capable of forming a correct judgment upon it because there are questions requiring experience in science, art, or trade which ordinary people do not possess. Usually, in cases involving slips and trips on sidewalks or floors, the average juror can look at photos and decide for themselves whether or not the situation appears hazardous. It would appear that in this particular case, that's how the trial judge viewed it.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau Count (Anthony L. Parga, J.), dated July 9, 2018. The judgment, upon a jury verdict on the issue of liability, is in favor of the defendants EBM Long Beach, LLC, and Aqua Construction Corp. and against the plaintiffs dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, with costs, the complaint insofar as asserted against the defendants EBM Long Beach, LLC, and Aqua Construction Corp. is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of liability.

The plaintiff Wendy Robins (hereinafter the injured plaintiff) fell after stepping onto a curb adjacent to an unfinished driveway apron leading to an underground parking garage in a condominium building that was under construction in Long Beach. The injured plaintiff, and her husband suing derivatively, commenced this action against, among others, the defendants EBM Long Beach, LLC, the owner of the property, and Aqua Construction Corp., the construction company at the site (hereinafter together the defendants). After a trial on the issue of liability...