Doukas v. America on Wheels, Levittown, New York, Inc.

• Decision Date: 10 October 1989
• Citation: 545 N.Y.S.2d 928,154 A.D.2d 426
• Parties: Eleftherios DOUKAS, Appellant v. AMERICA ON WHEELS, LEVITTOWN, NEW YORK, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 928

545 N.Y.S.2d 928

154 A.D.2d 426

Eleftherios DOUKAS, Appellant v. AMERICA ON WHEELS, LEVITTOWN, NEW YORK, INC., Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 10, 1989.

Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis, Howard M Goldstein and Michael Kaszubski, of counsel), for appellant.

Fogarty & Fogarty, P.C., Mineola (Patrick J. Fogarty, of counsel), for respondent.

Before MOLLEN, P.J., and SPATT, SULLIVAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Roncallo J.), entered January 6, 1988, which, upon a jury verdict, is in favor of the defendant.

ORDERED that the judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

This is the second time this case has been tried and the second time it has been before this court (see, Doukas v. America on Wheels, Levittown, 124 A.D.2d 778, 508 N.Y.S.2d 496). As he did in the first trial, the plaintiff alleged that he sustained a dislocated shoulder and consequential nerve damage when he fell while on the defendant's roller skating rink. At the time of his fall, the plaintiff was taking a lesson for which he paid the defendant's agent an additional fee. According to the plaintiff, when he felt himself starting to fall, he grabbed onto a railing in accordance with his teacher's instructions. He heard a "big crack" and fell to the floor. Dr. Neil Dougherty, who testified as an expert for the plaintiff (as he did in the first trial), stated that it was unsafe to instruct a skater to grab a railing in this manner, since it increased the possibility of injury. Dougherty also stated that he would instruct first-time skaters to stay away from railings, since an attempt by a falling skater to grab a railing for support could be an independent cause of injury.

Dougherty holds a doctorate in physical education and has instructed novice roller-skaters on the college level for four years. Initially, the Supreme Court permitted him to testify as an expert in the field of physical education, noting that his experience as an instructor qualified him as an expert. On the next day of trial however, the court reversed itself and ordered that the testimony of the expert be stricken. As a basis for this ruling, the court cited Dougherty's lack of expertise in the design or engineering of skating rinks. The jury subsequently returned a verdict for the defendant.

The plaintiff's contention that the question of his expert's qualification was determined in the prior appeal of this matter is without merit. In the prior appeal, we determined that the trial court erred when, after a jury verdict in the plaintiff's favor, it dismissed the plaintiff's complaint for his failure to make out a prima facie case. We were however, unable to reinstate the verdict because of the court's failure to charge the jury as to proximate cause (see, Doukas v. America on Wheels, Levittown, N.Y., 124 A.D.2d 778, 508 N.Y.S.2d 496, supra). The qualification of the plaintiff's expert with regard to instruction in roller skating was neither raised nor considered on that appeal.

The plaintiff further argues, on the merits, that...