Ali v City of New York

Ali v City of New York 2008 NY Slip Op 10049 [57 AD3d 391] December 23, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Khandaker M. Ali et al., Appellants,
v
City of New York et al., Defendants, and Trump International Hotel and Tower Condominium et al., Respondents.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants.

Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for Trump International Hotel and Tower Condominium, respondent.

Richard W. Babinecz, New York (Helman R. Brook of counsel), for Consolidated Edison Company of New York Inc., respondent.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J., and a jury), entered August 27, 2007, dismissing the complaint in an action for personal injuries sustained in a trip and fall over a sidewalk grate owned and maintained by defendant Con Edison and located in front of defendant Trump Hotel's property, unanimously affirmed, without costs.

In view of plaintiff's testimony that he tripped over a gap in the grate frame itself, and the absence of any evidence that plaintiff tripped over any defect extending beyond the grate itself, the trial court correctly charged the jury that Rules of City of New York Department of Transportation (34 RCNY) § 2-07 (b) (2), which requires grate owners to maintain a 12-inch area extending outward beyond the perimeter of the grate, was irrelevant (see Green v Downs, 27 NY2d 205, 208 [1970]; Forman v McFadden, 44 AD3d 523, 523-524 [2007]; cf. Montanez v Manhattan & Bronx Surface Tr. Operating Auth., 139 AD2d 411, 411-412 [1988]). The trial court also correctly precluded plaintiff's engineering expert from testifying that the 1¾-inch depression he measured around the grate exceeded an industry safety standard of no more than three eighths of an inch, where plaintiff's expert acknowledged that the claimed standard is not set forth in any code, ordinance or published industry document, and that his knowledge thereof was based only on experience (cf. Peters v Trammell Crow Co., 47 AD3d 419, 420 [2008]). The trial court also correctly directed a verdict in favor of Trump Hotel. Plaintiff testified that "[t]here was very little light," that "there was not enough light" and that it was "kind of dark" in the area at the time of the accident. Those mere conclusions were insufficient to establish that the lighting in the area was inadequate (see generally Folks v New York City Hous. Auth., 227 AD2d 520, 521 [1996], citing Rodriguez v New York City Hous. Auth., 87 [*2]NY2d 887 [1995]), and the court correctly determined that no reasonable juror could reasonably conclude that Trump negligently failed to provide adequate lighting (see CPLR 4401). Concur—Friedman, J.P., Sweeny, McGuire, Renwick and Freedman, JJ.