III v. The State of New York, Defendant. (2024)

Defendant moves by Notice of Motion, dated December 1, 2023, seeking, inter alia, an order granting Defendant's motion in limine precluding the testimony of Claimant's expert, Andrew R. Yarmus. Claimant opposed the motion, and Defendant replied thereto.

FACTUAL BACKGROUND AND POINTS OF

COUNSEL

Claimant filed a claim alleging that on January 18, 2020, he was walking in the MainGreenhouse of the Planting Fields Arboretum State Historic Park, located at 1395 Planting Fields Road, in the Town of Oyster Bay, County of Nassau, State of New York, when he was caused to fall down a series of steps, thereby sustaining serious and permanent injuries (hereinafter, the "Claim"). According to the Claim, Claimant was unable to visualize and/or see the stairs in the Main Greenhouse due to an optical illusion. The Claim further alleges that Defendant failed to warn patrons of the existence of stairs and failed to provide handrails for safe navigation.

It is undisputed that pursuant to Mr. Yarmus' CPLR 3101(d) expert disclosure, "Mr. Yarmus is expected to testify that a substantial factor contributing to Mr. Bucklin's accident was the State's negligent creation of an optical illusion/optical confusion and its failure to provide visual cues, warning signs, or handrails to alert visitors as to the existence of the aforesaid stairs."

It is the Defendant's contention that the "Court should preclude Mr. Yarmus' testimony as his opinions regarding the alleged hazardous condition of the stairs are within the ken of the fact-finder." Defendant objects to Mr. Yarmus' proposed testimony, citing Chafoulias v 240 E. 55th Street Tenants Corp., 533 N.Y.S.2d 440, 442 (NY App. Div. 1st Dep't 1988), given that the question of whether "one could reasonably perceive the existence of the steps [is] hardly so complex as to require that plaintiff present expert testimony in order to establish [his] case." ' Lastly, Defendant contends that Mr. Yarmus' proposed testimony as to what caused the Claimant to fall does not require expert testimony, especially because "there are many photographs of the location, and because Claimant intends to rely on his testimony and the testimony of Mr. Dose  ¹ to support his claim that the subject staircase caused the accident." and Mr. Dose's testimony will suffice.

In opposition, Claimant argues that Mr. Yarmus, P.E., a Professional Engineer, licensed in the State of New York, will testify at trial, in accordance with his many years of expertise in the fields of engineering, architecture, and human factors, as well as in accordance with his observations from his inspection of the accident location conducted on October 9, 2020. He will further opine based on his review of Claimant's and Mr. Dose's deposition transcripts.

Claimant contends that Mr. Yarmus will opine with a reasonable degree of engineering certainty as to the following:

a) a substantial factor contributing to Mr. Bucklin's accident was a negligent failure on the part of the defendant to provide visual cues to patrons and those lawfully on said premises that said steps exist;

b) a substantial factor contributing to Mr. Bucklin's accident was a negligent failure on the part of the defendant to install handrails on either side of the steps, which would have provided visual cues to patrons and those lawfully on said premises that said steps exist;

c) A substantial factor contributing to Mr. Bucklin's accident was defendant's causing, permitting and allowing the side knee walls of the aforesaid steps to be, become and remain obstructed by an overgrowth of plants, plantings, and flowers, thereby making it impossible for patrons and those lawfully on said premises to know that the steps existed;

d) a substantial factor contributing to Mr. Bucklin's accident was defendant's causing, permitting and allowing the eyesight of patrons and those lawfully on said premises to be directed towards the plantings, plants, flowers, etc. and not towards the steps, resulting in an attractive nuisance and making it impossible for patrons and those lawfully on said premises to know that the steps existed;

e) a substantial factor contributing to Mr. Bucklin's accident was defendant's causing, permitting and allowing the pathway leading to the steps, the steps themselves, and the area beyond the steps to be made of the same material, and to be of the same color, thereby making it impossible for patrons and those lawfully on said premises to know that the steps existed;

f) a substantial factor contributing to Mr. Bucklin's accident was defendant's failure to place any signs, stanchions, guards and/or barricades whatsoever in the area leading to the stairs in order to notify the patrons and pedestrians of the upcoming stairs, and in order to warn patrons, pedestrians and those lawfully on said premises of the stairs, thereby making it impossible for patrons and those lawfully on said premises to know that the steps existed;

g) a substantial factor contributing to Mr. Bucklin's accident was defendant's failure to place any warning signs whatsoever in the area leading to the stairs in order to notify the patrons and pedestrians of the upcoming stairs, and in order to warn patrons, pedestrians and those lawfully on said premises of the stairs, thereby making it impossible for patrons and those lawfully on said premises to know that the steps existed;

h) a substantial factor contributing to Mr. Bucklin's accident was defendant's negligent creation an optical illusion/optical confusion, which resulted in patrons and those lawfully on said premises having no way of knowing that said steps exist;

i) a substantial factor contributing to Mr. Bucklin's accident was defendant's failure to mark, delineate or demarcate the aforesaid steps in any way whatsoever, thereby making it impossible for patrons and those lawfully on said premises to know that the steps existed;

j) a substantial factor contributing to Mr. Bucklin's accident was defendant's failure to allow patrons to see and visualize the stairs, thereby making it impossible for patrons and those lawfully on said premises to know that the steps existed.

Claimant, relying on Zebzda v Hudson St., LLC, 72 AD3d 679, 680-81 [2d Dept 2010], further argues that it is reversible error to preclude a liability expert from testifying in a negligence case involving optical confusion. Claimant argues that "the facts of the case at bar are nearly analogous to the Zebzda case in that there is no allegation that the absence of a handrail violated any code or ordinance [, but rather], as in Zebzda, [Mr. Yarmus] will testify to principles of common-law negligence, rather than code violations. Optical confusion is a common-law negligence principle which can be supported by expert testimony."

In reply, Defendant reiterates its arguments in its underlying motion and argues the Zebzda case is distinguishable from the case at bar as it involves a slip and fall case requiring a handrail in the presence of a wet, slippery condition on a staircase, and that "experts in slip and fall cases discussing the need for handrails may sometimes testify about more complicated issues outside the ken of the average factfinder." Defendant notes that in Zebzda, "The Second Department ruled that an engineer could testify as to whether the absence of a handrail was a departure from generally accepted customs and practices, and whether defendants were negligent in failing to provide a handrail . . . [but that] in this case, where the evidence, including testimony and photographs, is sufficient for the factfinder to determine whether an optical illusion was present at the subject stairs . . . there is no need for expert testimony . . . "

Counsel argues that Mr. Yarmus "has not provided details in his expert disclosure form of his intent to testify about customs and practices relating to the need for handrails at staircases" nor has he offered any "evidence that he is familiar with whether there is a custom and practice to install handrails on a set of four stairs in a building that was built no later than 1929."

LAW AND ANALYSIS

"The purpose of a motion in limine is to exclude the introduction of anticipated inadmissible, immaterial or prejudicial evidence" (Sci. Applications Int'l Corp v Envtl Risk Sols, LLC, 37 Misc 3d 1202(A) [Sup Ct 2012], citing State v Metz, 241 AD2d 192 [1st Dept 1998]). Regarding motions in limine as to expert testimony, its "admissibility... lie[s] primarily in the sound discretion of the trial court" (People v Lee, 96 NY2d 157, 162 [2001]).

In considering a motion in limine to preclude expert testimony "[i]t is for the trial court in the first instance to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefitted by the specialized knowledge of an expert witness. Essentially, the trial court assesses whether the proffered expert testimony 'would aid a lay jury in reaching a verdict' " (id., see also De Long v County of Erie, 60 NY2d 296 [1983]).

Furthermore, "[i]n rendering this determination, courts should be wary not to exclude such testimony merely because, to some degree, it invades the jury's province. As we have previously noted, [e]xpert opinion testimony is used in partial substitution for the jury's otherwise exclusive province which is to draw conclusions from the facts. It is a kind of authorized encroachment in that respect' " (id., quoting People v Jones, 73 NY2d 427, 430-431 [1989]). In non-jury cases such as this the "trial court's assessment of the credibility and weight to be accorded an expert's testimony...is entitled to deference by a reviewing court" (Laundry Mgmt.-N. 3rd St., Inc. v BFN Realty Assocs., LLC, 179 AD3d 776, 780 [2d Dept 2020], appeal dismissed sub nom 35 NY3d 1092 [2020]).

"The [fact-finder] may be aided, but not displaced, in the discharge of its fact-finding function by expert testimony where there is reason to suppose that such testimony will elucidate some material aspect of the case that would otherwise resist comprehension by [fact finders] of ordinary training and intelligence" (People v Inoa, 25 NY3d 466, 472 [2015]).

The Court finds that Mr. Yarmus' expected testimony, made within a reasonable degree of engineering certainty and based upon his expertise in the fields of engineering, architecture, and human factors, in accordance with his observations from his inspection of the accident location conducted on October 9, 2020, as to whether the stairs at the accident scene creates an optical illusion/optical confusion and whether Defendant failed to provide visual cues, warning signs, or handrails to alert visitors as to the existence of the aforesaid stairs is relevant, and requires expert testimony to prove.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's Motion No. 100192 is DENIED.

Dated: June 25, 2024

Hauppauge, New York

HON. LINDA K. MEJIAS-GLOVER,

Judge of the Court of Claims

Papers Read on this Motion:

1. Notice of Motion, Affirmation in Support, and Exhibits Annexed

2. Affirmation in Opposition, Exhibits Annexed

3. Affirmation in Reply

FOOTNOTES

1.   Paul Dose, whom Claimant intends to call as a witness at trial is a former Horticultural echnician at Planting Fields State Arboretum.

Linda K. Mejias-Glover, J.