| Harris v Seager |
| 2012 NY Slip Op 02207 [93 AD3d 1308] |
| March 23, 2012 |
| Appellate Division, Fourth Department |
| Gail L. Harris, Appellant, v Robert Seager et al., Respondents.(Appeal No. 2) |
—[*1] Law Offices of Laurie G. Odgen, Buffalo (Daniel J. Caffrey of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Niagara County (Sara S. Sperrazza, A.J.),entered April 21, 2011 in a personal injury action. The judgment dismissed the complaint upon adirected verdict.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, defendants' motion for a directed verdict is denied, the complaint is reinstated anda new trial is granted.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when she tripped over a raised threshold in a doorway while exiting a store owned bydefendants James Briganti and Marie Briganti and operated by defendant Robert Seager. Thedoor through which plaintiff exited the store led directly to an exterior stairway with a handrailon one side only. According to plaintiff, as she was falling down the stairs after tripping on thethreshold, she reached for a railing on the side of the stairway where there was none, and shetherefore tumbled down the stairs and injured her right foot and leg. Shortly before trial, SupremeCourt granted the motion of defendants to preclude plaintiff's proposed expert witness fromtestifying at trial. After plaintiff rested at trial, defendants moved for a directed verdict dismissingthe complaint, contending, inter alia, that plaintiff failed to establish that they had actual orconstructive notice that the alleged defects in the property were dangerous. The court granted themotion, stating that "there is no way that there [is] any legal basis to put before the jury the issueof notice or causation," and entered judgment dismissing the complaint.
We conclude that the court erred in granting defendants' motion for a directed verdict. Theevidence proffered by plaintiff clearly established that defendants had constructive, if not actual,notice of the allegedly dangerous conditions on the property, i.e., the raised threshold and theabsence of a handrail on one side of the stairway. Indeed, as defendants conceded, thoseconditions had existed on the property for years prior to plaintiff's accident. Contrary todefendants' contention, plaintiff was not required to establish that defendants had notice of the[*2]allegedly dangerous nature of the threshold and stairway. Toestablish the notice element of her negligence claim, plaintiff was required to demonstrate thatdefendants had notice of conditions that she alleged were dangerous, but she was not required todemonstrate that defendants knew that those conditions were dangerous (see generallyPJI 2:90; Tanguma v Yakima County, 18 Wash Ct App 555, 563, 569 P2d 1225, 1230[1977], review denied 90 Wash 2d 1001 [1978]). To the extent that defendants rely ondicta in the decision of the Third Department in Richardson v Rotterdam Sq. Mall (289AD2d 679, 682 [2001]) that suggests otherwise, we decline to follow it. We note that, in supportof their motion for a directed verdict, defendants did not contend the alleged defects in theproperty were "trivial as a matter of law" (Sokolovskaya v Zemnovitsch, 89 AD3d 918, 918 [2011]; see generally Gafter v Buffalo Med. Group,P.C., 85 AD3d 1605, 1606 [2011]; Tully v Anderson's Frozen Custard, Inc.[appeal No. 2], 77 AD3d 1474, 1475 [2010]), nor do they advance that contention on appeal.
Finally, we reject plaintiff's contention that the court abused its discretion in granting themotion of defendants to preclude the testimony of plaintiff's expert based on her failure tocomply with CPLR 3101 (d) (1). "It is within the sound discretion of the trial court to determinewhether a witness may testify as an expert and that determination should not be disturbed 'in theabsence of serious mistake, an error of law or abuse of discretion' " (Saggese v Madison Mut.Ins. Co., 294 AD2d 900, 901 [2002], quoting Werner v Sun Oil Co., 65 NY2d 839,840 [1985]). Given the deficiencies in plaintiff's expert disclosure, we perceive no abuse of thecourt's discretion in this case. Present—Centra, J.P., Carni, Lindley, Sconiers andMartoche, JJ.