Second Department Allows “Expert” Testimony in Brooklyn Slip and Fall Action

On September, 24 the Supreme Court, Appellate Division Second Department overturned a decision by the Supreme Court, Kings County which granted a motion made by the defendants in that case for judgment as a matter of law pursuant to CPLR 4401. CPLR 4401 allows either party to ask for a judgment as a matter of law at any time after the close of the evidence presented by an opposing party. A judgment as a matter of law is a judgment made by the court that the non-moving party’s evidence is insufficient to reasonably support its case. The original Supreme Court case was between Chayeh Fleisher and the City of New York. Fleisher claimed that she had slipped on a sidewalk in Brooklyn because the pavement was raised or uneven, and that the City was responsible because it had known of the defect in the sidewalk and had not fixed it in a timely manner. The City is only legally responsible for hazardous conditions created by sidewalks if it has notice of the condition long enough before the accident to be able to fix the problem.

concrete.jpgAccording to Fleisher, the City was made aware of the defect in the sidewalk via a map given to the city by the Big Apple Pothole & Sidewalk Protection Committee. In order to successfully sue the city for injuries caused by her fall, a plaintiff must prove, as per the Administrative Code of the City of New York § 7-201 (c) (2), that the city had prior knowledge of the defects in the sidewalk at that specific location and a sufficient amount of time to fix the problems. The Supreme Court denied the plaintiff’s application to admit the Big Apple maps into evidence and further denied her request to admit the maps through the testimony of Irvin Loewenstein, a former Director of Sidewalk Management, and former Director of the Prior Notification Unit of the City’s Department of Transportation. It also denied her request to have Loewenstein qualified as an expert in Big Apple maps so he could testify about the contents of the maps at the trial.

The Appellate Court ruled that because Lowenstein had worked for Big Apple Maps on behalf of the Department of Transportation for many years he could be assumed to have the requisite “skill, training, education, knowledge or experience” for which to be considered a reliable expert. Further they decided that this experience would allow him to lay a foundation for the maps to be entered into evidence. Business records are considered exempt from the rule disallowing hearsay to be admitted into evidence. But in order to be entered into evidence business records, regularly kept records kept in the normal course of business, must have a foundation laid for them. This can be done by someone who is familiar with the records; in this case the Court decided that Lowenstein, because he had worked with the maps while with the Department of Transportation, was properly qualified as an expert witness to lay a foundation for the maps.

The Appellate Court’s decision is important because disallowing the maps and Lowenstein’s testimony would have significantly affected the outcome of the case. Because the plaintiff was unable to introduce the maps the court found for the defendant on its motion for judgment as a matter of law because there was not sufficient evidence to prove that the city knew about the defect, which is a requirement before recovering from the city in these kinds of personal injury cases. Had the evidence been introduced, and there is precedent in other cases where Big Apple maps have been admitted as evidence, there is a good chance the defendant would have prevailed or at least have been able to satisfy the requirement that the City know of the fault. Because of the Appellate Court’s decision the case will go back to the Supreme Court for a new trial in which Lowenstein will be allowed to testify, and the maps will be allowed into evidence.

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