United States: Two Decisions From New York's Appellate Division Show Unpredictability Of Appellate Courts

New York, N.Y. (February 17, 2022) - Two decisions from New York's Appellate Division, Second Department, demonstrate the unpredictability of the courts when reviewing jury verdicts in personal injury matters involving expert testimony. 

New York Trial & Appellate Team Precludes Expert Liability Testimony, Jury Verdict Upheld Dismissing Kings County Sidewalk Claim

In Curry v. Eastern Extension, LLC, the Appellate Division, Second Department recently upheld a jury verdict obtained by Lewis Brisbois in the plaintiff-friendly venue of Brooklyn. The appeal was handled by New York Partners Meredith Drucker Nolen and Daniel Wang. The plaintiff alleged a trip-and-fall on a broken sidewalk and sued the adjacent building owner under New York's “sidewalk law,” NYC Administrative Code 7-210.

In discovery, the plaintiff exchanged photographs of a damaged sidewalk. The plaintiff confidently moved for summary judgment on liability under New York's permissive standard for plaintiffs (see Rodriguez v. City of New York, 31 N.Y.3d 312 (2018)), however the motion was denied. The case proceeded to trial, represented by the well-known firm Subin Associates, LLP. The plaintiff argued to the jury that the photographs clearly depicted a sidewalk that was poorly maintained and constituted a tripping hazard under the sidewalk law. The plaintiff also proffered the opinion of a “sidewalk expert” who opined that this sidewalk violated Administrative Code 19-152(a)(4), because the tripping hazard was greater than 0.5 inches in height. Our appellate attorneys moved to preclude the expert's testimony on the ground that, among other things, Administrative Code 19-152(a)(4) only applies to new construction. Further, it is well settled in New York that “there is no ‘minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable.” Trincere v. County of Suffolk, 90 N.Y.2d 976, 977 (1997). The trial court judge granted the motion and precluded the plaintiff's expert from testifying.

Thereafter, the jury returned a verdict holding that the defendant was not negligent in maintaining the sidewalk in a reasonably safe condition. The plaintiff's appellate counsel, Brian Isaac of Pollack Pollack Isaac & DeCicco, appealed to the Second Department from both the jury verdict and the summary judgment order. The plaintiff argued that both the verdict and order were in error because the photographs and expert testimony showed that the sidewalk was negligently maintained as a matter of law.

The Appellate Division upheld both the summary judgment order and the jury verdict, emphasizing that “whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury” (Trincere, supra, 90 N.Y.2d at 977)). The court also noted that the plaintiff's expert had limited knowledge because he never visited the scene, the photographs were of poor quality, and the jury did not need expert testimony to decide whether a sidewalk was maintained in a reasonably safe condition.The Appellate Division therefore upheld both rulings in the defendant's favor, notwithstanding the opinion of the plaintiff's expert.

This decision can be cited whenever a plaintiff claims that Administrative Code 19-152(a)(4) creates a “minimum dimension test.” The result shows that even in the plaintiff-friendly Kings venue, it is possible for defendants to obtain favorable results, especially where trial and appellate counsel work in close coordination. It is important to challenge the testimony of plaintiffs' experts and to make the proper recommendation during the trial for the purposes of an appeal.

Appellate Division, Second Department Reinstates Complaint Despite Bus Video and “Emergency Doctrine”

In Fergile v. Payne, the plaintiff was involved in a collision with a bus while riding a motor scooter near an intersection, and sustained personal injuries. The Appellate Division, Second Department recently modified a lower court's order to the extent of reinstating the complaint and finding a question of fact for the jury regarding negligence, while also upholding the denial of the plaintiff's motion for summary judgment on liability.  

Lewis Bribois' Appellate team had obtained summary judgment dismissal in the lower court based on video evidence that clearly showed the plaintiff's scooter dart in front of the defendant's bus only a split second before impact. However, on appeal the Second Department found a question of fact based on its interpretation that the bus driver should have seen the plaintiff's vehicle earlier, adjusted her speed accordingly, and generally been more aware of the presence of the plaintiff's vehicle in the other lane in the moments leading up to the impact. The court also held that the “emergency doctrine” defense is a question of fact for the jury, despite the video showing the scooter dart in front of the bus at the last second.

Collectively, the Curry and Fergile decisions show that results can never be guaranteed in the Appellate Division. 

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