Rodriguez v. New York City Housing Authority

• Decision Date: 15 November 1994
• Citation: 618 N.Y.S.2d 352,209 A.D.2d 260
• Parties: Enrique RODRIGUEZ, Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 352

618 N.Y.S.2d 352

209 A.D.2d 260

Enrique RODRIGUEZ, Plaintiff-Respondent, v. NEW YORK CITY HOUSING AUTHORITY, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 15, 1994.

Before WALLACH, J.P., and KUPFERMAN, ROSS, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (Anita Florio, J.), entered April 30, 1993 which, after jury trial, awarded plaintiff a total of $470,300 for past and future damages, unanimously reversed, on the law, without costs, and the matter remanded to Supreme Court for a new trial.

During the presentation of plaintiff's case, his expert witness was permitted to testify as to the application and interpretation of certain statutes and regulations requiring the maintenance of premises in safe condition. This court has had recent occasion to reiterate that it is reversible error to permit a party to attempt to prove negligence by expert testimony regarding the meaning and applicability of a statute imposing a standard of care (Ross v. Manhattan Chelsea Assoc., 194 A.D.2d 332, 333, 598 N.Y.S.2d 502; see also, Marquart v. Yeshiva Machezikel Torah D'Chasidel Belz, 53 A.D.2d 688, 689, 385 N.Y.S.2d 319).

Plaintiff's engineer asserted that requirements governing means of "egress" are applicable to the stairs on which plaintiff allegedly fell. However, the word "stairs" does not appear in the portions of the statutes quoted by the expert, and the statutes are silent with respect to the metal stair stripping or nosing that is at issue in this case. Similarly, the expert maintained that New York State Building Code requirements governing "devices or safeguards" include such stair stripping within its ambit. However, the cited requirements are limited to "conformance with the code condition under which installed ", and plaintiff presented no evidence of either the date of the building's construction or existing code conditions at the time (see, Ross v. Manhattan Chelsea Assoc., supra, at 333, 598 N.Y.S.2d 502). The witness was permitted to testify about matters beyond the scope of his expertise and to usurp the function of the court (Petru v. Hertz Corp., 33 A.D.2d 755, 305 N.Y.S.2d 828).

Plaintiff's summation was highly prejudicial and inflammatory. Even if we were to conclude, as plaintiff contends, that his counsel's remarks during summation were not so egregious as to require reversal, the cumulative effect of her summation together with the error in the engineer's testimony warrants reversal and a new trial. Plaintiff's counsel improperly intimated that defendant's medical expert was unworthy of belief because he was compensated for his appearance at trial; she injected her own opinion in disagreement with the...