Summary
finding expert testimony proper when information provided is “outside the experience and knowledge of the average juror”
Summary of this case from Selzer v. N.Y.C. Transit Auth.Opinion
June 22, 1995
Appeal from the Supreme Court, Bronx County (Barry Salman, J., Kenneth Thompson, J.).
In light of the questions concerning whether defendant/landlord was in possession and/or control of the instant premises and had a duty to repair and maintain the metal sidewalk grate above her basement, summary judgment was appropriately denied. At trial, the evidence supported the jury verdict that defendant was 100% liable for plaintiff's injuries when he fell through the grate. Indeed, defendant had a key to open the grate to allow meter inspectors access to defendant's basement. As such, the grate clearly qualified as a "special use" for defendants, which in turn obligated them to maintain said grate ( see, e.g., Hughes v City of New York, 236 N.Y.S.2d 446, affd 25 A.D.2d 617, lv denied 18 N.Y.2d 577). As the evidence demonstrates that defendants were negligent in maintaining the grate and thereby failed to prevent the accident, defendants' liability was clearly established.
It was proper for the trial court to permit the expert to testify about the sidewalk grate, its deterioration and how the deterioration could and should have been prevented. Such information was outside the experience and knowledge of the average juror ( see, Vigilant Ins. Co. v. Rippner Elec. Constr. Corp., 196 A.D.2d 494, 496). We also note that plaintiff's response to defendant's "expert demand" notice satisfactorily disclosed the required information about the expert and was not prejudicially untimely.
We have considered all other arguments raised by defendant and find them to be meritless.
Concur — Ellerin, J.P., Wallach, Nardelli, Tom and Mazzarelli, JJ.