Summary
affirming dismissal of § 240 claim on ground that plaintiff's misuse of ladder was responsible for his accident
Summary of this case from CIRA BAUTISTA VASQUEZ INDIVIDUALLY v. FCE INDUSTRIESOpinion
Argued April 3, 2000.
May 15, 2000.
In a claim to recover damages for personal injuries, etc., the claimants appeal from a judgment of the Court of Claims (Ruderman, J.), dated June 14, 1999, which, after a nonjury trial, dismissed the claim.
De Caro De Caro, P.C., Purchase, N.Y. (Philip A. De Caro of counsel), for appellants.
Harris, Kelly Goldberg (Carol R. Finocchio, New York, N Y [Lisa M. Comeau] of counsel), for respondent.
Before: GUY JAMES MANGANO, P.J., LAWRENCE J. BRACKEN, SONDRA MILLER, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The claimant Antonio Gomes allegedly sustained physical injuries when an aluminum extension ladder upon which he was working suddenly began telescoping downward, stopping when his arm became caught between the rungs. Gomes's testimony failed to explain how or why the ladder began contracting. The State proffered the testimony of its safety expert that Gomes's misuse of the ladder was responsible for the incident. The Court of Claims credited the testimony of the State's expert and dismissed the claim. We affirm.
Contrary to the claimants' contentions, the Court of Claims did not err in admitting the testimony of the State's expert witness. Despite the unavailability of the ladder at the time of trial, this witness's testimony was properly based upon facts in evidence (see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723; Herzog v. Miller, 236 A.D.2d 517; Tucker v. Elimelech, 184 A.D.2d 636, 637). Moreover, the expert's opinion was expressed with sufficient certainty as to satisfy accepted standards of reliability (see, Matott v. Ward, 48 N.Y.2d 455, 459; Matter of Weisenthal v. New York State Bd. of Regents, 249 A.D.2d 712; Edgewater Apts. v. Flynn, 216 A.D.2d 53; Sumowicz v. Gimbel, Bros., 161 A.D.2d 314; Sitaras v. Ricciardi Sons, 154 A.D.2d 451). The court's factual determination was not against the weight of the credible evidence and accordingly should not be disturbed (see, Thoresen v. Penthouse Intl. Ltd., 80 N.Y.2d 490; Mathieu v. State of New York, ___ A.D.2d ___ [2d Dept., Dec. 13, 1999]; Matter of Tri-State Consumers Ins. Co. v. Dabush, 264 A.D.2d 848).
The parties' remaining contentions are without merit.
MANGANO, P.J., BRACKEN, S. MILLER and GOLDSTEIN, JJ., concur.