Opinion
Index No. 2019-50494 Motion Seq Nos. 35 6 7
04-05-2022
ANTHONY PARCESEPE, Plaintiff, v. TOPS MARKETS, LLC d/b/a TOPS FRIENDLY MARKETS and RIC RHINEBECK ASSOCIATES, LLC, Defendants.
Unpublished Opinion
DECISION & ORDER (MOTIONS IN LIMINE)
EDWARD T. McLOUGHLIN, J., ACTING SUPREME COURT JUSTICE.
The following papers were read and considered in deciding the plaintiffs motions in limine (sequences 3 and 6) and defendant Tops Markets, LLC's motions in limine (sequences 5 and 7):
| NYSCEF Docket Numbers | |
| Motion Sequence Number 3 | 54 - 60, 69 - 90 |
| Motion Sequence Number 5 | 68 - 91, 207 - 208 |
| Motion Sequence Number 6 | 143-150, 166, 170-171, 175, 178, 185-193 |
| Motion Sequence Number 7 | 164 - 178, 185 - 197 |
In this negligence action, the plaintiff seeks damages for injuries allegedly sustained after slipping in a puddle of water located on the floor of aisle 9 at the supermarket leased by defendant Tops Markets, LLC (hereinafter "the defendant") and owned by RIC Rhinebeck Associates, LLC, located on Route 9 in Rhinebeck, New York. The plaintiff alleges that the puddle of water he slipped on was caused by a leaking skylight above aisle 9 of the Tops supermarket.
The plaintiff commenced this action against the defendant with the filing of a summons and complaint on February 5, 2019. The plaintiff subsequently filed an amended complaint, which asserted a cause of action sounding in common law negligence against the defendant and RIC Rhinebeck Associates, LLC (see NYSCEF Docket No. 6). The defendants answered the amended complaint and asserted numerous affirmative defenses. After joinder of issue and discovery, each defendant moved for summary judgment dismissing the complaint. By Decision and Order dated April 12, 2021, the Court denied the defendant's motion for summary judgment but granted RIC Rhincbcck Associates' motion dismissing the complaint insofar as asserted against it (see NYSCEF Docket No. 51).
The matter is presently scheduled for jury selection on April 25, 2022. The parties have Hied various motions in limine. For the reasons set forth herein, motion sequence number 3 is denied in its entirety, motion sequence number 5 is granted in part and denied in part, motion sequence number 6 is granted in part and denied in part, and motion sequence number 7 is granted in part and denied in part.
DISCUSSION
The Court has the inherent power to grant a motion in limine to exclude evidence that is irrelevant or prejudicial (see Woodie v Azieca Intl. Corp., 60 A.D.3d 535, 536 [1st Dept 2009]); Slate v. Mm, 241 A.D.2d 192, 198 [1st Dept 19981; Caster v. lncreda-Meal, Inc., 238 A.D.2d 917, 918 [4th Dept 1997]). Trial courts are accorded wide discretion in making evidentiary rulings (People v. Carroll, 95 N.Y.2d 375, 385 [2000]). "To be admissible, evidence must be relevant and its probative value outweigh the risk of any undue prejudice" (Mazella v. Beals, 27 N.Y.3d 694, 709 [2016], citing People v. Morris, 21 N.Y.3d 588, 595 [2013]). Motion Sequence No. 3
The plaintiff seeks an in limine ruling: (1) prohibiting the defendant from offering the testimony of Ezra Culver regarding whether he smelled alcohol on the plaintiffs breath on June 24, 2018 (the date of the incident); and (2) prohibiting the issue of alcohol intoxication at the time of the accident from being discussed by counsel injury selection and during trial.
Ezra Culver (hereinafter "Culver"), employed as store manager for the defendant on the date of the incident, was produced for a deposition on October 22, 2019. During his deposition, he testified that he did not witness the incident but was alerted to it by a female store employee (see NYSCEF Docket No. 74, p 17). Culver testified that he had smelled alcohol on plaintiffs breath and that plaintiff had seemed "very off" (id. at p 24). After Culver gave this testimony, plaintiffs counsel confronted him with a copy of a customer incident report that Culver had prepared after the incident in which there was no mention of alcohol on the plaintiffs breath (see NYSCEF Docket No, 58). When asked to explain this apparent omission, Culver stated that he did not include it in the incident report "because it was just my feeling. It didn't feel like it was fact" (see, NYSCEF Docket No. 74, p 24). Culver also testified, however, that he did record his observation about the odor of alcohol in a separate note card that he had attached to the incident report (id.). The note card, which was not produced during the first deposition of Culver but was eventually produced by the defendant, contained the notation "had a smell of alcohol on breath" (see NYSCEF Docket No. 130).
After the note card was produced by the defendant, plaintiff moved for an order directing the further deposition of Culver (see motion sequence number 4, NYSCEF Docket No. 62, ct. seq.). After defendant agreed to produce Culver for a further deposition, the parties stipulated that motion sequence number 4 would be withdrawn (.see NYSCLT Docket No. 202).
Plaintiff, during his deposition, denied consuming any alcoholic beverages within 24 hours of the incident (see NYSCEF Docket No. 56, p 24). Following the incident, plaintiff treated at Emergency One Urgent Care in Kingston, New York. Plaintiff asserts that the medical records from that visit (see NYSCEF Docket No. 59) contain no reference to alcohol involvement or impairment. Plaintiff argues that, in light of his denial of consumption of alcohol, Culver's conflicting testimony, and the absence of any reference to alcohol in the medical records, Culver's testimony at trial would be speculative and unduly prejudicial and thus should be precluded. The Court docs not agree.
"In New York, the general rule is that all relevant evidence is admissible unless its admission violates some exclusionary rule .., Hvidence is relevant if it has any tendency in reason to prove the existence of any material fact; i.e., it makes determination of the action more probable or less probable than it would be without the evidence ..." (Jerome Prince. Richardson on Hvidence §4-101 [Farrell 11th Ed. 1995] [quoting People v. Scarola, 71 N.Y.2d 769, 777 (1988)]; see Ando v. Woodbeny, 8 N.Y.2d 165 [I960]). Mere, as argued by the defendant, Culver's anticipated testimony about his observations of the plaintiff is relevant to the issue of comparative negligence. Testimony from a witness about his observations is appropriate where, as here, the observations pertain to an issue relevant to the case. Moreover, there will be no undue prejudice by admission of Culver's proposed testimony as any inconsistencies in his prior testimony are proper subjects of cross-examination at trial, to aid the jury in assessing his credibility.
The absence of any reference to alcohol in plaintiffs medical records does not change the Court's analysis. The medical records indicate that plaintiff did not seek treatment until June 25, 2018, well over 24 hours after the incident occurred. Given that span of time, the absence of evidence of alcohol consumption in the medical records is hardly surprising and, thus, does not support plaintiffs argument.
Based upon the foregoing, plaintiffs motion to preclude Culver's testimony is denied. Because his anticipated testimony is proper, and will presumably be subject to vigorous cross-examination, counsel will be free to discuss the issue of alcohol consumption during jury selection and trial.
Motion Sequence No. 5
When discussing the incident during his deposition, plaintiff stated that after he explained to Culver what had occurred, Culver called over another supermarket employee (a porter named Richard Graves, hereinafter "Graves") to clean up the water (see NYSCKF Docket No. 56, p 25). Graves began to clean up the water with paper towels (id). Plaintiff claimed that he overheard Graves state to Culver something to the effect that: "they still hadn't repaired the skylight" or "it was supposed to be repaired and they haven't done it yet" (id, at pp 61-62). There were no other witnesses to the alleged conversation between Graves and Culver regarding the condition of the skylight above aisle 9 (id. at p 63). Graves is no longer employed by the defendant and was not deposed.
In response to a notice to produce from plaintiff, the defendant disclosed maintenance records for the premises from June 24, 2017, through July 24, 2018 (see NYSCEF Docket No. 77). These records included five work orders for repairs that predated the incident and involved roof leaks in other areas of the store, three of which were near the U-Scan (self-checkout) area of the store (id.). None of the repairs involved any of the store's skylights. The records also included a June 28, 2018, work order (four days after the incident) created by Culver that stated: "Skylight in aisle 9 leaks when it rains. Please send a tech out to seal corner" (id). On March 2, 2020, Culver was produced by the defendant for a supplemental deposition. During his testimony, he stated that the premises has roughly thirty skylights (see NYSCEF Docket No. 78, p 11) and the U-Scan area of the premises is located approximately 20-25 feet from aisle 9 (id. at p 15).
By notice of motion dated September 22, 2021, the defendant seeks an in limine order precluding: (i) any evidence of maintenance or repair work performed to the ceiling of the premises prior to the incident; (ii) any evidence of maintenance or repair work performed to any of the skylights in the premises, including the skylight above aisle 9, after the incident; (iii) plaintifffrom offering testimony regarding the comment made by Graves; and (iv) plaintiffs engineering expert, Scott M. Silbcrman, from testifying. Plaintiff opposes the requested relief.
a. Preclusion of Prior Repairs
The defendant seeks to preclude plaintiff from offering evidence of repairs to interior and exterior of the roof of the premises prior to the incident. Tn opposition, plaintiff argues that the maintenance records that pre-date the incident are admissible to show that the roof and skylights were in a state of disrepair.
The prior maintenance records do not involve the aisle 9 skylight or any other skylight at the premises. Thus, plaintiffs claim in opposition to the motion that the prior maintenance records show that the skylights were in a state of disrepair is simply incorrect. Furthermore, prior repairs to the roof are not relevant to the alleged defective condition at issue in this matter. The plaintiffs theory is that the aisle 9 skylight was defective in that it leaked. Thus, the theory goes, when it rained on June 24, 2018, rainwater leaked through the defective skylight and pooled on the floor of aisle 9, causing plaintiff to slip and be injured. Allowing plaintiff to introduce evidence of prior repairs to the roof, unrelated to the skylight in aisle 9, would only serve to mislead the jury and cause prejudice to the defendant.
Moreover, prior repairs to the roof in general - as opposed to the aisle 9 skylight - are insufficient to establish that the defendant had notice of a defective condition in the aisle 9 skylight. "[G]eneral awareness that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiffs fall" (P'mcquadio v. Recine Realty Corp., 84 N.Y.2d 967, 968 [1994], citing Gordon v. American Museum of Natural History, 61 N.Y.2d 836, 838 [1986]; Toussaint v. Ocean Ave. Apartment Associates, LLC, 144 A.D.3d 664, 665 [2d Dept. 2016]).
Plaintiffs reliance on Robinson v. 211-11 Northern, LLC (46 A.D.3d 657 [2d Dept. 2007]) is misplaced. In Robinson, the Second Department held that "the trial court improperly precluded the plaintiff from offering proof of a recent ceiling leak in another part of the premises to establish that the roof of the building was in a state of disrepair ..." (id. at 658-659). Unlike here, the defective and/or dangerous condition in Robinson was the roof itself. As such, the condition of the roof prior to the plaintiffs accident in that case was relevant to the jury's determination of the negligence claims. In the instant matter, plaintiffs claims center around a leaking skylight, not the roof of the premises. As discussed, supra, the condition of the roof in the instant matter is not relevant to the condition of the skylight in aisle 9, or whether the defendant had notice of a defect in the skylight.
Based upon the foregoing, that branch of the defendant's motion seeking to preclude the admission of evidence of prior repairs and maintenance is granted.
b. Preclusion of Subsequent Repairs
As a general matter, proof of subsequent remedial measures is not admissible to establish that a defendant was negligent (see Caprara v. Chrysler Corp., 52 N.Y.2d I 14, 122, l 1981]; Bolm v. Triumph Corp., 71 A.D.2d 429, 436 [4th Dept. 19791 ["The general rule is that evidence of subsequent repairs or other remedial measures is not admissible as proof of negligence or culpability, because the fact that repairs were subsequently made is irrelevant on the issue of defendants lack of care at the time of the accident"], lv dismissed 50 N.Y.2d 801 [1980]). In discussing the rationale for precluding such evidence at trial, the Court of Appeals has observed:
[S]uch evidence does not tend to prove that the party sued knew, or was bound to know, that the machine or structure was imperfect, unsafe or out of repair. After an accident has happened it is ordinarily easy to see how it could have been avoided; and then for the first time it frequently happens that the owner receives his first intimation of the defective or dangerous condition of the machine or structure which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe and perfect condition, or that the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe and secure. While such evidence has no legitimate bearing upon the defendant's negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury. Hence in this court, and
generally in the Supreme Court, it has been held erroneous to receive such evidence (Corcoran v. Village of Peekskill, 108 NY 151, 155 [1888]).
An exception to this longstanding rule applies if there is a disputed issue regarding a defendant's maintenance or control of a premises (see Soto v. CSS Corporation, 157 A.D.3d 740 [2d Dept. 2018]; Del Vecchio v. Danielle Associates, LLC, 94 A.D.3d 941 [2d Dept. 2012]; Cleland v. 60-02 Woodside Corp., 221 A.D.2d 307 [2d Dept. 1995]).
Plaintiff contends that he docs not intend to argue that the post-incident repairs constitute an admission of negligence. Rather, he asserts that Culver's statements in the June 28, 2018, work order can be used to establish the defendant's actual and/or constructive notice of a defective or dangerous condition (see Memorandum of Law, NYSCEF Docket No. 90, pp 8-9). This distinction, however, is unpersuasive (see Corcoran, 108 NY at 151 [evidence of a fence built around an opening in a street maintained by City of Peekskill following plaintiffs injury from falling into the opening does not prove defendant had knowledge of the dangerous condition prior to the accident]; see also A4ontes v. Long Island College Hosp., 175 A.D.2d 681, 681 [4th Dept. 1991] ["evidence of subsequent repairs is not discoverable on the issue of prior notice of defective condition"]).
Plaintiffs alternative argument - that the repair company's post-incident statements are admissible to show the condition of the skylight on the date of the incident - is similarly unavailing. The cases relied upon by plaintiff to support this argument arc trial court decisions from the 19lilcentury. The holdings of these cases are not binding on this Court, nor does the Court find the rationale behind these decisions to be persuasive. Moreover, precluding evidence of subsequent repair does not leave plaintiff bereft of any ability to establish the condition of the skylight at the time of the incident. Plaintiff has photographs of the skylight as well as his personal observations of the skylight from the date of the incident (see NYSCKF Docket No. 73 at pp 27-32).
See Stone v. Town of Poland, 30 NYS 748 |"Gen. Term, Fifth Dept. 1894]; Sherman v. Village of Oneonta, 12 NYS 950 [Gen. Term, 1891]; Hillesum v. City of New York, 4 NYS 806 [Sup Cl, City of New York, Gen. Term, First Dept., 1889]). Plaintiff also cites a more recent trial court decision, Alfieri v. Carmelite Nursing Home, Inc. (29 Misc.3d 509 [Civil Court, City of New York, 2010]). However, the court in Alfteri, aside from restating the principle that evidence of subsequent remedial measures may be submitted to prove other issues, denied the plaintiff's request to introduce evidence of post-accident training received by an employee of the defendant nursing home (id. at 517).
Balancing the availability of other evidence to establish the condition of the skylight on the date of the incident against the strong possibility of undue prejudice to the defendant were evidence of the subsequent repairs admitted, the Court finds no reason to deviate from the longstanding rule prohibiting the admission of evidence of post-accident repairs. Based upon the foregoing, that branch of the defendant's motion seeking to preclude plaintiff from admitting evidence of subsequent repairs to the skylight is granted.
c. Preclusion of Testimony Regarding Comments of Defendant's Porter
Effective December 31, 2021, the CPLR. was amended to add section 4549 ("Admissibility of an opposing party's statement"). This new provision provides:
In light of this change in the law after the motion was fully submitted, the Court provided each side an opportunity to submit supplemental briefing on this issue (see NYSCEt7 Docket No. 206). Plaintiff submitted a supplemental brief on March 31, 2022 (see NYSCEF Docket No. 207) and defendant submitted a supplemental brief on April 1, 2022 (see NYSCEF Docket No. 20S).
A statement offered against an opposing party shall not be excluded from evidence as hearsay if made by a person whom the opposing party authorized to make a statement on the subject or by the opposing party's agent or employee on a matter within the scope of that relationship and during the existence of that relationship.
This measure codifies and expands the common law "speaking agent" hearsay exception.
Here, the evidence clearly establishes that, at the time of the statement, Graves was working at the premises as an employee of the defendant. His statement also pertained to "a matter within the scope" of his employment: it was made to Culver, his supervisor, and related to his cleanup of the water in aisle 9, which he was performing at Culver's direction. Because Graves' statement falls within the ambit of CPLR §4549, that branch of the defendant's motion seeking to preclude Graves' statement to Culver is denied.
d. Preclusion of Plaintiff's Engineering Expert
The defendant argues that the opinions expressed in the expert report of Scott M. Silbcrman, P.E. (see NYSCEF Docket No. 83) are conclusory and speculative and must be precluded. More specifically, the defendant asserts that Mr. Silbcrman's opinions are not reliable because his inspection of the supermarket rooftop took place approximately 21 months after the incident and do not establish any basis for the Court to conclude that the condition of the premises at the time of his inspection was similar to the condition of the premises on the date of the incident. The Court agrees.
"It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness" (Hambsch v. New York City Transit Authority, 63 N Y2d 723, 725-726 [1984] [quoting Cassano v. Hagstrom, 5 N.Y.2d 643, 646 [1959]). Here, the expert's inspection of the premises took place on March 2, 2020, nearly 21 months after the incident. Given the length of time between the incident and Silberman's inspection of the premises, the Court finds Silbcrman's opinion to be conclusory, speculative, and not based upon facts in the record (see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 130 [2011] ["the Appellate Division properly concluded that the opinion of plaintiffs expert engineer was speculative, as it was premised on an inspection conducted, and photographs taken, of the parking lot over two years after plaintiffs fall"]; see also Slattery v. Tops Markets, LLC, 147 A.D.3d 1504 [4th Dcpt. 2017]; DeCarlo v. Village of Dohbs Ferry, 36 A.D.3d 749, 750 [2d Dept. 2007] [opinion of plaintiffs expert engineer was conclusory and speculative as there was no evidence that condition of premises he inspected two years after the accident was the same as it was at the time of the accident]; Lai v. Ching Po Ng, 33 A.D.3d 668, 668 [2d Dept. 2006]; McGarvey v. Bank of New York, 7 A.D.3d 431, 432 [1st Dept. 2004]; Kruimer v. National Cleaning Contractors, Inc., 256 A.D.2d £, 1 [1st Dept. 1998] ["The expert's opinion should have been disregarded as conclusory inasmuch as it was based upon observations of the floor made over two years after the accident"]). As such, the expert may properly be precluded from testifying at trial (see Ali v. Chaudhry, 197 A.D.3d 1084, 1086 [2d Dept. 2021]; see also Ouinn v. Artcraft Construction, Inc., 203 A.D.2d 444, 445 [2d Dept. 1994] [trial judge properly precluded expert's testimony at trial because he determined the expert's opinion to be speculative and lacking a factual basis in the record]).
In opposition to the motion, plaintiff relies on Laccone v. Chalet (128 A.D.3d 1020 [2d Dept. 20151). In Laccone, the Second Department reversed atrial court order that precluded the plaintiffs expert from testifying at trial. The Court held that "the expert's reliance upon his personal inspection of the premises five years after the accident provided a sufficient foundation for his opinion" (Laccone, 128 A.D.3d at 1023). However, Laccone is distinguishable from the instant matter in a significant regard. In Laccone, unlike here, a representative of the defendant testified at a deposition "that the photographs taken by the expert at the time of the inspection fairly and accurately depicted the appearance of the premises at the time of the accident'' (id. [emphasis added]). Although the expert's inspection was five years after the accident, there was evidence in the record corroborating that the condition of the premises at issue had not changed. That is simply not the case here.
Plaintiff took several photographs of the interior of the skylight on the date of the incident (see NYSCHF Docket No. 73 at pp 27-32). Mr. Silberman cites these photographs as one of the items he reviewed in preparing his report and forming his opinion (see NYSCEF Docket No. 83, p 3). However, beyond referencing the photographs at the beginning of the report, Silberman does not so much as mention the photographs in the remainder of the report and his analysis of the condition of the premises. Instead, Silverman's report relies primarily on his inspection of the roof and skylights (and photographs thereof taken by him) and documentation of subsequent leaks and repairs (which. for the reasons discussed elsewhere in this Decision and Order, shall not be part of the record at trial). In fact, the photographs he took during his inspection of the subject skylight show repair work and patching tape (id. at pp 6-7). Having been repaired, the skylight was thus not in a condition similar to the date of the incident when it was inspected by Silberman.
For the foregoing reasons, the Court finds Mr. Silberman's opinions, based upon an inspection of the premises nearly 21 months after the incident, to be speculative and conclusory (see Figueroa v. Haven Plaza Housing Dev. Fund Co., Inc., 247 A.D.2d 210, 210 [1st Dept. 1998] [court properly disregarded expert's opinion as conclusory where, although expert stated that his conclusions were based on his site inspection and photographs taken days after accident, he never compared his observations to the photographs or stated that the condition of the premises was the same as it was at time of the accident two years earlier]). Accordingly, that branch of the defendant's motion in limine seeking to preclude the testimony of Scott M. Silberman, P.K., is granted.
Motion Sequence No. 6
On October 8, 2021, the defendant disclosed for the first time its intention to raise the "storm-in-progress" defense at trial (see NYSCEF Docket No. 145). The defendant also identified meteorologist Wayne Mahar as an expert witness it intends to call for the liability portion of the trial (see NYSCEF Docket No. 146). According to the expert witness disclosure, Mr. Mahar intends to testify regarding strong thunderstorms with torrential downpours that moved over the Tops supermarket at or around the time of the incident (see NYSCEF Docket No. 147).
This defense was not asserted in the defendant's answer.
In motion sequence 6, plaintiff seeks an in limine ruling precluding (1) the defendant from asserting the "storm in progress" defense at trial; (2) the defendant from offering testimony from its meteorology expert, Wayne G. Mahar; and (3) the use of a jury charge proposed by the defendant because it ignores the recurrent dangerous condition of the leaking skylight in Aisle 9 of its store.
Under the "storm-in-progress" rule, "a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm" (Mejias v. City of New York, 183 A.D.3d 886, 887 [2d Dept. 20201 [citations omitted]). The defense has been extended to apply to dangerous conditions occurring inside a building entrance way cause by winter storms (see Zonitch v. Plaza at Latham LLC, 255 A.D.2d 808, 808-809 [3d Dept. 19981 ["... like icy sidewalks and snow-covered parking lots, a wet, slippery entranceway, caused by tracked-in snow and slush, is a reality of winter weather which a landowner ordinarily is not required to rectify until the underlying weather condition has abated"]; see also Solazzo v. New York City Transit Authority, 6 N.Y.3d 734, 735 [2005] [storm-in-progress rule applicable to subway steps that became wet during ice and snow storm]; Dubensky v. 2900 Westchester Co., LLC, 27 A.D.3d 514, 514-515 [2d Dept. 2006J | holding where snow or moisture is tracked into an entranceway or vestibule, landowners are under no obligation to "cover all of their floors with mats, nor continuously mop up all moisture resulting from tracked in precipitation"]; Hussein v. New York City Transit Authority, 266 A.D.2d 146, 146 [1st Dept. 1999] ["Just as landowners have no duty to clear outdoor public spaces while precipitation is still falling, they are not required to provide a constant, ongoing remedy when an alleged slippery condition is said to be caused by moisture tracked indoors during a storm"]).
Plaintiff contends that while the storm-in-progress defense can apply to the interior of a defendant's premises, the defense is strictly limited to snow or moisture that has been tracked in from outside. Here, plaintiff alleges that he slipped on a puddle of water in aisle 9 that was caused by a leaking skylight. There is no reasonable view of the evidence in the record that the water in aisle 9 had been tracked in from the outside, or that the puddle in aisle 9 was located anywhere near the entrance to the supermarket.
All of the cases cited by plaintiff support, at least implicitly, his argument that application of the storm-in-progress defense to the interior of a premises is limited to scenarios where snow or moisture is tracked in from outside. The defendant has offered no authority to the contrary. The Court, in its own research, has found no case expanding the storm-in-progress defense as requested by the defendant. Moreover, the practical concerns reflected in the doctrine related to the challenges and dangers of maintaining property in a reasonably safe condition during inclement weather (see Sherman v. New York State Thruway Authority, 27 N.Y.3d 1019, 1022 [2016] [Rivera, J., dissenting]) arc simply not present in the instant matter where the allegations center around a defective, leaking skylight.
Based upon the foregoing, the Court sees no reason to extend the storm-in-progress rule to the factual circumstances present in this matter (see Rijos v. Riverbay Corp., 105 A.D.3d 423 [1st Dept, 2013] [the flooding of a building's lobby by rainwater is distinguishable from situations in which the storm-in-progress rule is typically applied]). Accordingly, plaintiffs motion is granted and the defendant is precluded from raising the storm-in-progress defense at trial.
Furthermore, because the defendant is precluded from asserting the storm-in-progress defense at trial, the testimony of its proposed meteorology expert, Wayne Mahar, is no longer relevant (see American Motorists Ins. Co., v. Schindler Elevator Corp., 291 A.D.2d 467 [2d Dept. 2002] [it was error for court to permit expert testimony on topic that court had precluded in its in limine order]). Plaintiffs motion is therefore granted and the defendant is precluded from offering the testimony of Wayne Mahar at trial.
Finally, plaintiffs motion to preclude defendant's proposed jury charge is granted solely to the extent that any charge containing the storm-in-progress defense shall not be considered by the Court. However, the Court will not now decide any other disputes regarding proposed jury charges; rather, the Court will reserve any decision on proposed jury charges until it holds a charge conference at the conclusion of the trial.
Mali on Sequence No. 7
By notice of cross-motion dated October 14, 2021, the defendant seeks an in limine order: (i) quashing plaintiffs subpoena to Neth & Son, Inc. and precluding the admission al trial of a March 31, 2016 report prepared by Neth & Son regarding its visual inspection of the roof of the premises; (ii) precluding introduction of the International Property Maintenance Codes at trial; (hi) precluding plaintiffs medical expert from testifying at trial; and (iv) precluding the use of plaintiff s proposed jury charge and verdict sheet. Plaintiff opposes the requested relief.
The defendant's motion is denied insofar as it seeks to preclude plaintiffs proposed jury charge and verdict sheet. As discussed supra, the Court will not now decide any disputes regarding proposed jury charges or verdict sheet; rather, the Court will reserve any decision on proposed jury charges and verdict sheet until it holds a charge conference at the conclusion of the trial. The defendant's motion is also denied insofar as it seeks to preclude plaintiffs medical expert from testifying at trial. Subsequent to defendant filing this motion, plaintiff served and filed an expert disclosure that complies with CPLR 3101(d) (see NYSCEF Docket No. 192). Further, the defendant abandoned this branch of its motion by tailing to object to the content of the expert disclosure or otherwise address plaintiffs arguments on the topic in its reply papers.
Without addressing the defendant's contention that plaintiff failed to comply with the notice provisions for a third-party subpoena (see CPLR §§2303[a], 2305 [d], and 3120[3]), the defendant's motion to preclude the introduction of Neth & Son's 2016 roof report is granted. As with the prior maintenance and repair records from the premises, the 2016 roof report does not relate to the aisle 9 skylight or any other skylight at the premises. For the reasons set forth in the Court's discussion of the defendant's motion to preclude evidence of prior repairs (see Motion Sequence No. 5, supra), the contents of the 2016 roof report are not relevant. Accordingly, that branch of the defendant's motion that sought to preclude admission of Neth & Son's 2016 roof report is granted.
Finally, the defendant's motion to preclude introduction of the International Property Maintenance Codes at trial is also granted. As discussed in greater detail on the defendant's motion to preclude the testimony of plaintiff s expert, Scott Sitberman, P.E, (see Motion Sequence No. 5, supra), Mr. Silberman's opinion regarding the code violations is based upon his inspection of the premises nearly 21 months after the incident and is thus speculative and conclusory. Moreover, the cited code provisions - only one of which directly address skylights - are not relevant to the contested issue in this matter: whether the defendant had actual and/or constructive notice of the leak in the skylight above aisle 9. Plaintiff has failed to demonstrate, through the Silberman report or otherwise, the relevance of the condition of the other skylights at the premises 21 months after the incident to the condition of the aisle 9 skylight on the date of the incident.
Based upon the foregoing, it is
ORDERED that motion sequence number 3 is denied in its entirety; and it is further
ORDERED that motion sequence number 5 is granted in part and denied in part; and it is further
ORDERED that motion sequence number 6 is granted in part and denied in part; and it is further
ORDERED that motion sequence number 7 is granted in part and denied in part.
Any relief not specifically addressed herein is denied.
The foregoing constitutes the Decision and Order of the Court.