McGovern v. Riverdale Country School Realty Co., Inc.

• Decision Date: 01 March 1976
• Citation: 51 A.D.2d 894,380 N.Y.S.2d 687
• Parties: Edward T. McGOVERN, Jr., Plaintiff-Appellant, v. RIVERDALE COUNTRY SCHOOL REALTY COMPANY, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 687

380 N.Y.S.2d 687

51 A.D.2d 894

Edward T. McGOVERN, Jr., Plaintiff-Appellant, v. RIVERDALE COUNTRY SCHOOL REALTY COMPANY, INC., et al Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

March 1, 1976.

A. N. Seiff, New York City, for plaintiff-appellant.

R. J. Acito, New York City, for defendants-respondents.

Before MURPHY, J.P., and LUPIANO, BIRNS, SILVERMAN, and LANE, JJ.

MEMORANDUMK DECISION.

Judgment, Supreme Court, Bronx County, entered October 3, 1974, dismissing the complaint at the close of plaintiff's case, unanimously affirmed without costs or disbursements.

Plaintiff, while a student at the defendant school, was injured during the course of a basketball game. The game was being held in the gym, which was 119 feet long and 79 feet wide. The basketball court was 84 feet long and 50 feet wide. There were two sets of double doors affording access to the gym located towards each end of the longer wall of the gym. Each door had a 47 1/4 by 5 1/2 wire-meshed glass insert. During the course of the game, plaintiff attempted to retrieve a ball but could not stop. He struck the glass portion of the door and sustained personal injuries. The door which he struck was approximately 15 feet away from the nearest portion of the basketball court.

The pleadings in this action enunciated two theories of recovery; namely, unsafe physical conditions and lack of adequate supervision.

Proof of the first theory was sought to be adduced through the testimony of Mr. Volpe, a teacher and basketball coach by profession. The Trial Court sustained objections to his testifying relating to the safety of the physical plant and, after plaintiff rested, the Court granted a defense motion to dismiss for failure to make out a prima facie case.

The offer of proof relating to the proposed expert testimony did not include any statement that Mr. Volpe had ever rendered advice regarding basketball court construction or had aided in designing or planning of gymnasiums or recreation areas (Cf. Stevens v. Central School District #1, 25 A.D.2d 871, 873, 270 N.Y.S.2d 23, 28 (Aff'd 21 N.Y.2d 780, 288 N.Y.S.2d 475, 235 N.E.2d 448)).

There is no quarrel with the general proposition that the special expertise of a witness may stem from experience, observation, or knowledge (II Wigmore, Evidence, 3d Ed., § 558). However, it is also the rule in this State that the qualification of a witness to testify as an expert is left to the discretion of the...