|Claimant short name:||SKLAVONITIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||The Odierno Law Firm, P.C.
By: Christian B. Coppinger, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Antonella Papaleo, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 27, 2021|
|See also (multicaptioned case)|
This is a claim by Stephanie Sklavonitis (Claimant) against the State of New York (Defendant or State) alleging that she was injured when she stepped off a curb and into a pothole on New York State Route 111 (Islip Avenue) and fell. The claim alleges that the State's negligent maintenance and operation of the roadway caused Claimant's injuries. In anticipation of the trial Defendant has made a motion in limine regarding the expert testimony Claimant intends to present. Claimant has opposed.
Defendant's motion papers are not entirely clear as to the relief sought. The notice of motion indicates that the State is seeking an order precluding the testimony of Claimant's intended engineering expert, Harold Krongelb. The "wherefore" clause in Defendant's affirmation in support is narrower and seeks to preclude two aspects of Mr. Krongelb's testimony: "the pothole's measurements as well as the length of time the subject pothole was present in that area... ." However, paragraph seven of the affirmation in support seeks slightly broader relief than does the "wherefore" clause and seeks to exclude Mr. Krongelb's intended testimony relating "to the measurements of the subject pothole, how long the pothole was present...or...[his] opinion as to whether the subject pothole was [sic] dangerous conditions... ." According to the Court's reading of the motion papers it will consider the requests to exclude the three items in paragraph seven.
"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 Misc3d 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 ).
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 . 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 ). 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 ).
The State's motion asserts that the matters about which Mr. Krongelb is expected to testify are within the ken or the province of the fact-finder and relies upon Galasso v 400 Executive Blvd 101 AD3d 677 [2d Dept 2012]. Galasso, however, is distinguishable. There, the Second Department held that the trial court's order granting the defendant's motion to preclude expert testimony was not a abuse of discretion because "under the facts" of that case "the existence of a defect on the curb which caused the plaintiff to fall was not beyond the understanding of a typical juror" (id., at 670). The Galasso panel noted that the testimony of several lay witnesses who had observed the defect over a period of time was sufficient to establish the length of time the defect had existed such that expert testimony was not needed. Furthermore, there is no indication that the proffered Galasso expert sought to testify as to measurements of the defect.
The State also refers to Hendricks v Baksh, 46 AD3d 259 [1st Dept 2007]. Notably, this decision did not concern a motion in limine. Rather, in Henricks the trial court had granted the defendant's motion for a directed verdict holding that the plaintiff had not made a prima facie case of negligence because plaintiff had not presented expert testimony. In reversing the directed verdict, the First Department held that whether the homeowner's repair of the sidewalk in front of his home "by covering up cobblestones with ready mix cement in a box" (id.) was negligent and created a defect did not require expert testimony. Accordingly, the Hendricks decision does not address expert testimony regarding the size of a defect or the length of time it existed.
The Court finds that the measurements of the pothole taken on February 13, 2018 and Mr. Krongelb's engineering opinion as to the length of time the pothole had been present prior to the action are not within the ken of the fact-finder.
On the other hand, any determination as to whether the subject pothole constituted a dangerous condition is an ultimate determination to be made by the fact-finder and does not warrant expert testimony:
"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 .
In accordance with the foregoing, it is
ORDERED, that the branches of Defendant's motion seeking to exclude expert testimony as to the length of time the alleged defect existed and the measurements of the defect are denied; and it is further
ORDERED, that the branch of Defendant's motion seeking to exclude expert testimony as to whether the alleged defect constituted a dangerous condition is granted
May 27, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims