Oboler v. City of New York

• Decision Date: 20 July 2006
• Docket Number: 8523.
• Citation: 31 A.D.3d 308,2006 NY Slip Op 05891,819 N.Y.S.2d 34
• Parties: ALAN D. OBOLER et al., Appellants, v. CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

31 A.D.3d 308

819 N.Y.S.2d 34

2006 NY Slip Op 05891

ALAN D. OBOLER et al., Appellants, v. CITY OF NEW YORK, Respondent.

8523.

Appellate Division of the Supreme Court of the State of New York, First Department.

July 20, 2006.

Judgment, Supreme Court, New York County (Robert D. Lippmann, J.), entered May 3, 2005, dismissing the complaint on defendant's motion after the conclusion of plaintiffs' case at trial, affirmed, without costs.

Plaintiffs brought this action to recover damages for injuries allegedly sustained by Alan Oboler when he tripped and fell over a manhole cover. Plaintiffs do not dispute that defendant had no prior written notice of the alleged hazard, and they failed to submit evidence to raise a triable issue of fact as to whether defendant affirmatively created the defective condition (see Amabile v City of Buffalo, 93 NY2d 471 [1999]). Furthermore, the mere presence of a covered manhole, absent any indication as to its purpose, does not establish a special use so as to obviate the necessity for notice (Patterson v City of New York, 1 AD3d 139 [2003]).

The admission of an expert opinion is a matter within the sound discretion of the court (see Dufel v Green, 84 NY2d 795, 797-798 [1995]). An expert's evidence "`must be based on facts in the record or personally known to the witness'" (Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 714-715 [2005], quoting Samuel v Aroneau, 270 AD2d 474, 475 [2000], lv denied 95 NY2d 761 [2000]).

Plaintiffs' expert's testimony, relating to whether defendant created the alleged defective condition, was properly excluded. Although plaintiff's expert indicated that he had reviewed photographs of the manhole cover and plaintiff testified that the photographs accurately represented the condition at the time of the accident, there was no evidence regarding who took the photographs or when they were taken. In addition, it is impossible to discern from the photographs the height differential between the manhole and the asphalt. Moreover, plaintiff's expert did not visit the scene until four years after the accident. Thus, his opinion would have been based on pure speculation (see Saborido-Calvo v New York City Tr. Auth., 11 AD3d 216 [2004]; see also McGarvey v Bank of N.Y., 7 AD3d 431 [2004] [affidavit of plaintiff's expert who examined door more than two years after plaintiff's accident was not probative of whether door revolved at hazardous speed at time of accident]; Kruimer v National Cleaning Contrs., 256 AD2d 1 [1998] [expert's opinion should have been disregarded as conclusory inasmuch as it was based on observations of floor made over two years after accident]; Figueroa v Haven Plaza Hous. Dev. Fund Co., 247 AD2d 210 [1998] [court properly rejected as conclusory that part of expert's affidavit based on observation of walkway two years after accident]).

We further observe that there was no evidence as to when or whether the street—where the manhole cover was located—had been repaved, much less whether any such work had been negligently performed, or as to how long the allegedly defective condition existed. Accordingly, the court properly dismissed the complaint at the conclusion of plaintiff's case at trial.

Concur—Marlow, Sullivan and Malone, JJ.

Saxe, J.P., and Gonzalez, J., dissent in a memorandum by Saxe, J.P., as follows:

I would reverse, reinstate the complaint, and remand for a new trial. Plaintiffs should have been permitted to present the proposed expert testimony in order to satisfy their burden of establishing the existence of a defect and defendant City's responsibility for creating the defect. Furthermore, the complaint should not have been dismissed at the close of plaintiffs' case.

Plaintiff Alan Oboler alleges that he tripped and fell over elevated pavement surrounding a manhole cover located on Madison Avenue between 92nd Street and 93rd Street. He had just exited a taxicab and started to cross the street, but fell when his foot struck and snagged on the raised asphalt surrounding the manhole cover. He stated that the section of asphalt he tripped on was five or six inches across and two to three inches in height, and photographs were admitted into evidence which, according to plaintiff, portrayed the appearance and condition of the manhole cover and the section of asphalt surrounding it at the time of his accident.

The intended testimony of plaintiffs' expert, as reflected in his report, included his initial assessment that the condition of the area was substantially the same on the date he inspected it as it was at the time of the accident, based upon his comparison of photographs taken shortly after the accident with his own observations and with additional photographs he took at the time of his inspection. He was further prepared to state that the asphalt where plaintiff tripped rose approximately 1½ inches above the manhole casting, in violation of the New York City Administrative Code (§ 19-147 [d]), which required that street paving be flush with manhole covers. He asserted that this height differential was created when Madison Avenue was resurfaced.

The trial court granted defendant's application to preclude this expert from testifying, reasoning that an inspection of the accident site years after the accident was insufficient to establish that he had a sufficient basis to give expert testimony in the matter. While the trial court has discretion as to the admission of expert testimony (see Dufel v Green, 84 NY2d 795, 797-798 [1995]), the trial court's preclusion of this expert was unwarranted, and not a proper exercise of discretion. The court's ruling was not based upon the substance of the expert's intended testimony, but merely on the passage of time between the incident and the expert's inspection of the site. However, the passage of time between the incident and the expert's inspection is irrelevant here, and his assessment of the condition is as relevant as if he had made his observations at the time the original photographs were taken. As I have previously observed, while there are certainly complained-of defective conditions which cannot logically be proved by observations made long after an accident, in instances such as the present case, it can...