Schmidt v One N.Y. Plaza Co. LLC 2017 NY Slip Op 06047 Decided on August 8, 2017
Appellate Division, First Department is not a legal malpractice case, but it is a well written decision setting forth how experts battle in a summary judgment case.  Plaintiff slips/falls from a ramp while at work.  His job is to lead a security dog in examining trucks.

“Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff could not establish that his accident took place as the result of any negligence on the part of defendants in the design or maintenance of the service ramp. In support of their motion, defendants submitted an architect’s report from their expert which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard.

In opposition, plaintiff averred that its expert would testify that the service ramp was defective and that the defects were in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and were in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendants’ motion for summary judgment and found that they failed to establish a prima facie entitlement in that defendants’ expert affidavit only addressed the Building Code and Occupational Safety and Health Administration (OSHA) regulations, and failed to address other types of industry-wide standards that might be applicable to determine whether defendants were negligent.

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, [*2]18 NY3d 335, 339 [2011]). Summary judgment should not be granted where there is any doubt as to the existence of triable issues or there are any issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Here, defendants established prima facie entitlement to summary judgment by establishing that the ramp was not designed in a negligent manner and was not in violation of any rules, or standards applicable at the time of construction.

Defendants’ expert report stated that the Building Code applicable to the premises, which was enacted in 1968 (see 1968 Building Code of City of NY [Administrative Code of City of NY] tit 27), was silent concerning the components of a loading dock, delivery truck parking, material loading and unloading, and in regard to an access ramp between the truck parking floor and the top of the loading dock. As a result, the expert concluded, the ramp did not violate the Building Code. The expert also concluded that because the service ramp was not part of the required egress from the loading dock area, those parts of the Building Code applicable to “Means of Egress” did not apply.

Based on his conclusion that the Building Code did not contain sections specifically applicable to the instant facts, defendants’ expert reviewed the standards promulgated by OSHA. He concluded, however, that no section of OSHA applied to the instant facts. He also found that National Fire Protection Agency “Life Safety Code” did not apply to the instant facts. Defendants’ expert opined that the portion of the curb of the ramp where plaintiff was alleged to have tripped was not a foreseeable pedestrian path, since it runs parallel, not across the path of pedestrians walking up and down the ramp. He noted that the use of bright yellow paint to alert pedestrians to the presence of walkway conditions was proper and in compliance with the American Society for Testing and Materials. Overall, defendants’ expert concluded that plaintiff had not cited to any valid authority in support of his contention that the ramp caused the accident, and established that the ramp did not violate any standards referenced by plaintiff’s expert in his expert exchange.

In opposition, plaintiff failed to raise a triable issue of fact as to any negligence on the part of defendants (see Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [2009]).”