| Zebzda v Hudson St., LLC |
| 2010 NY Slip Op 02946 [72 AD3d 679] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Jan Zebzda, Appellant, v Hudson Street, LLC, et al.,Respondents. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein and David D. Hess of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Kings County (Shack, J.), dated September 9, 2008, which, upon thegranting of the application of the defendant Hudson Street, LLC, in effect, to dismiss thecomplaint insofar as asserted against it, and upon an order of the same court dated May 12, 2008,granting the motion of the defendant Cogswell Realty Group, LLC, pursuant to CPLR 4401 forjudgment as a matter of law, after a nonjury trial, is in favor of the defendants and against him,dismissing the complaint.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, the application of the defendant Hudson Street, LLC, in effect, to dismiss the complaintinsofar as asserted against it and the motion of the defendant Cogswell Realty Group, LLC,pursuant to CPLR 4401 for judgment as a matter of law are denied, the complaint is reinstated,the order dated May 12, 2008, is modified accordingly, and the matter is remitted to the SupremeCourt, Kings County, for a new trial.
The plaintiff commenced this action to recover damages for personal injuries allegedlysustained by him when he fell while descending an interior staircase in the common area of abuilding being converted from commercial space into condominiums. The plaintiff's trialtestimony demonstrated that the area of the staircase where he fell was wet and did not have ahandrail. The plaintiff slipped as he was descending the stairs, and, as he was falling, heattempted to grasp a handrail, but none was present.
At trial, the plaintiff sought to present the testimony of an expert witness, who was to testifyas to generally accepted engineering safety standards, and that, in his expert opinion, suchstandards required that a handrail be present in the staircase where the plaintiff fell. Generally,the admission of expert testimony is a matter that lies within the sound discretion of the trialcourt (see Berger v Tarry Fuel OilCo., 32 AD3d 409 [2006]). Here, the Supreme Court granted the defendants' motion topreclude the testimony of the plaintiff's expert, concluding that, since the absence of a handraildid not violate any applicable code or ordinance, the defendants could not be held liable undergenerally accepted engineering safety standards. While it is not disputed that the absence of a[*2]handrail in the subject stairwell did not violate any code orordinance, the absence of such violations only absolved the defendants of the mandatory dutythat such provisions might otherwise impose (see Swerdlow v WSK Props. Corp., 5 AD3d 587, 588 [2004]), andis not dispositive of the plaintiff's allegations based on common-law negligence principles(see Washington v Albany Hous. Auth., 297 AD2d 426, 427 [2002]; see alsoKellman v 45 Tiemann Assoc., 87 NY2d 871, 872 [1995]; Wilson v Proctors Theater &Arts Ctr. & Theater of Schenectady, 223 AD2d 826, 828-829 [1996]). Had he beenpermitted to testify, the plaintiff's expert could have addressed whether, under the circumstancespresented here, the absence of a handrail was a departure from generally accepted customs andpractices, and whether the defendants were negligent in failing to provide a handrail.Accordingly, the Supreme Court improvidently exercised its discretion in precluding the plaintifffrom presenting the proposed expert testimony (see Duncan v Corbetta, 178 AD2d 459,459 [1991]; see also Kormusis v JeffreyGardens Apt. Corp., 31 AD3d 392, 393 [2006]), and the preclusion of this testimonydeprived the plaintiff of a fair trial.
Moreover, the Supreme Court erred in granting the application of the defendant HudsonStreet, LLC (hereinafter Hudson), in effect, to dismiss the complaint insofar as asserted against iton the ground that, as the sponsor of the condominium, Hudson was not liable for injuries whichtook place after the declaration establishing the plan of condominium was recorded. Since it isunclear on this record the extent to which Hudson maintained control over the building during itsconversion from commercial space into a condominium development (see generallyMultiple Dwelling Law § 4 [44]; Pekelnaya v Allyn, 25 AD3d 111 [2005]), the Supreme Courtshould have denied the application. Rivera, J.P., Miller, Dickerson and Roman, JJ., concur.