Zarnoch v. Williams

• Decision Date: 01 April 2011
• Citation: 919 N.Y.S.2d 694,83 A.D.3d 1373,2011 N.Y. Slip Op. 02548
• Parties: Jerad M. ZARNOCH, Plaintiff–Respondent,v.Jeffrey J. WILLIAMS, Steven J. Klosek, and Varick Restaurant, Inc., Doing Business as the Varick Bar and Grill, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1373

919 N.Y.S.2d 694

2011 N.Y. Slip Op. 02548

Jerad M. ZARNOCH, Plaintiff–Respondent,

v.Jeffrey J. WILLIAMS, Steven J. Klosek, and Varick Restaurant, Inc., Doing Business as the Varick Bar and Grill, Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

April 1, 2011.

Leonard & Cummings, LLP, Binghamton (Hugh B. Leonard of Counsel), for Defendant–Appellant Jeffrey J. Williams.Gozigian, Washburn & Clinton, Cooperstown (Edward Gozigian of Counsel), for Defendants–Appellants Steven J. Klosek and Varick Restaurant, Inc., Doing Business as the Varick Bar and Grill.Edward C. Cosgrove, Buffalo, for Plaintiff–Respondent.PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, and MARTOCHE, JJ.MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries he sustained when he was struck by a motorcycle operated by defendant Jeffrey J. Williams, after Williams had consumed alcoholic beverages at a restaurant owned and operated by defendants Steven J. Klosek and Varick Restaurant, Inc., doing business as The Varick Bar and Grill (collectively, Varick defendants). Williams and the Varick defendants each appeal from a judgment entered upon a jury verdict in favor of plaintiff. We reject Williams' contention that Supreme Court abused its discretion in permitting plaintiff's expert to testify regarding the likelihood of plaintiff's need for future surgery. The admissibility and scope of expert testimony rests within the sound discretion of the court ( see De Long v. County of Erie, 60 N.Y.2d 296, 307, 469 N.Y.S.2d 611, 457 N.E.2d 717). “ ‘[A] witness may testify as an expert if it is shown that he [or she] is skilled in the profession or field to which the subject relates[ ] and that such skill was acquired from study, experience[ ] or observation’ ” ( Karasik v. Bird, 98 A.D.2d 359, 362, 470 N.Y.S.2d 605; see Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532). Plaintiff established that his medical expert possessed “the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable” and that the testimony was in the acceptable form of an opinion concerning the need for future medical treatment ( Matott, 48 N.Y.2d at 459, 423 N.Y.S.2d 645, 399 N.E.2d 532; see Inzinna v. Brinker Rest. Corp. [appeal No. 2], 302 A.D.2d 967, 968–969, 754 N.Y.S.2d 495; Wroblewski v. National Fuel Gas Distrib. Corp., 247 A.D.2d 917, 918, 668 N.Y.S.2d 423).

We agree with the Varick defendants, however, that the court erred in denying their post-trial motion to set aside the verdict, and we therefore modify the judgment accordingly. We conclude that the court erred in instructing the jury with respect to the special use doctrine. The special use doctrine creates an exception to the general rule that the duty to keep public sidewalks in a reasonably safe condition and repair lies with municipalities when “ ‘permission [has been] given, by a municipal authority, to [abutting landowners to] interfere with a street solely for private use and convenience in no way connected with the public use’ ” ( Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417, quoting Clifford v. Dam, 81 N.Y. 52, 56–57). When “the abutting landowner[s] ‘derive[ ] a special benefit from that [public property] unrelated to the public use,’ [they are] ‘required to maintain’ the used property in a reasonably safe condition to avoid injury to others” ( id., quoting Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318). A special use is typically characterized by “ ‘the installation of some object in the sidewalk or street or some variance in the construction thereof’ ” ( Weiskopf v. City of New York, 5 A.D.3d 202, 203, 773 N.Y.S.2d 389, quoting Granville v. City of New York, 211 A.D.2d 195, 197, 627 N.Y.S.2d 4; see Melamed v. Rosefsky, 291 A.D.2d 602, 737 N.Y.S.2d 410; 1A N.Y. PJI3d 2:111, at 649).

Here, the accident occurred when Williams attempted to drive his motorcycle away from The Varick Restaurant after he had parked it on the sidewalk. There is no indication in the record that the sidewalk had ever been altered in some way for the exclusive benefit of the Varick defendants, and plaintiff does not contend that he was injured by some defect in the structure or integrity of the sidewalk ( cf. Peretich v. City of New York, 263 A.D.2d 410, 693 N.Y.S.2d 576). Further, the record establishes that the Varick defendants neither directed Williams to park on the sidewalk nor had the authority to do so ( see Vehicle and Traffic Law § 1202[a][1][b]; see also Pulka v. Edelman, 40 N.Y.2d 781, 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019, rearg. denied 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640). Thus, the Varick defendants had no duty to maintain, repair, supervise or control the sidewalk with respect to vehicles parked on it. Plaintiff's position on the sidewalk “was no different from that of any other passerby” using the public sidewalk ( Rodriguez v. Oak Point Mgt., 87 N.Y.2d 931, 932, 640 N.Y.S.2d 868, 663 N.E.2d 909).

It is hereby ORDERED that the judgment so appealed from is modified on the law by granting the post-trial motion of defendants Steven J. Klosek and Varick Restaurant, Inc., doing business as The Varick Bar and Grill, setting aside the verdict against those defendants and dismissing the complaint against those defendants and as modified the judgment is affirmed without costs.

All concur except FAHEY, J., who dissents in part and votes to affirm in the following Memorandum:

I respectfully dissent in part and would affirm the judgment inasmuch as I cannot agree with the majority that Supreme Court erred in instructing the jury with respect to the special use doctrine.

The accident giving rise to this action occurred on the night of May 5, 2005 while plaintiff was standing on a sidewalk outside two bars known colloquially as “The Stiefvater” and “The Varick.” The Varick is owned and operated by defendants Steven J. Klosek and Varick Restaurant, Inc., doing business as The Varick Bar and Grill (collectively, Varick defendants). While plaintiff was standing on the sidewalk, defendant Jeffrey J. Williams exited The Varick and mounted his motorcycle, which was parked on the sidewalk. Seconds later, plaintiff was struck by the motorcycle and pinned against the building.

The accident caused plaintiff to sustain significant injuries, including a left tibial shaft fracture, a broken right ankle and a broken right foot, and plaintiff subsequently underwent four surgeries related to those injuries. Plaintiff commenced this action seeking damages for those injuries and, at trial, presented evidence establishing, inter alia, that motorcycles had been parked in front of The Varick on prior occasions. Indeed, according to one of plaintiff's witnesses, motorcycles were regularly present on the sidewalk in front of The Varick on Thursdays, and plaintiff's accident occurred on a Thursday. The trial testimony also established that The Varick catered in part to motorcyclists and used the area of the sidewalk where the accident occurred as a motorcycle parking area.

During its charge to the jury, the court instructed the jury with respect to the special use doctrine, i.e., that the Varick defendan...