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Melini v. 71st Lexington Corp.

July 1, 2009


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


This is a personal injury action in which the plaintiff, Carlo Melini, seeks damages for injuries he suffered when he fell while walking on a ramp in a parking garage. The parties have filed in limine motions in advance of trial. Defendants Garage Management Corp. ("GMC") and East 71st Street Garage Corp. ("East 71st") move to preclude the plaintiff from offering evidence of a prior accident at the same location and to preclude the testimony of the plaintiff's expert, Scott Silberman. The plaintiff, in turn, moves to preclude the testimony of the defendants' experts, Dr. Ronald Grelsamer and Stanley Fein; the introduction of the building plans of the premises where the accident occurred; and evidence of the absence of prior accidents.

Defendants' Motion

A. Prior Accident

In 1997, Amy Lewis-Goldstein and Henry B. Goldstein filed suit against defendants East 71st and 71st Lexington Corporation ("71st LC") in connection with a fall sustained by Ms. Lewis-Goldstein on the same ramp at issue in the instant case. (Summons and Verified Complaint, attached as part of Exh. D to Affirmation of Ian Asch dated June 10, 2009 ("Asch 6/10/09 Aff.")). East 71st and GMC seek to preclude the plaintiff from introducing evidence of that prior litigation at trial.

"It is well settled that proof of a prior accident, whether offered as proof of a dangerous condition or as proof of notice thereof, is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same." Hyde v. County of Rensselaer, 51 N.Y.2d 927, 929, 434 N.Y.S.2d 984, 985 (1980). However, what constitutes the "relevant conditions" necessarily depends on the nature of the claim and the purpose for which the evidence is being offered. As long as the relevant conditions are sufficiently similar, "[d]ifferences in the surrounding circumstances go to the weight to be given the evidence, rather than to its admissibility." Bellinger v. Deere & Co., 881 F. Supp. 813, 818 (N.D.N.Y. 1995).

It is clear that the circumstances of the Lewis-Goldstein case cannot be offered here as evidence of a dangerous condition. First, the plaintiff does not proffer a verdict or other determination of fault, but only the pleadings from the earlier case. Those allegations are not in themselves evidence that would assist the jury here in determining whether the ramp was in fact dangerous.*fn1 Second, even if the pleadings had some probative value, the circumstances of that case are not sufficiently similar to constitute proof on the issue of dangerousness. In this action, Mr. Melini attributes his accident exclusively to the allegedly unsafe slope of the ramp. By contrast, in the Lewis-Goldstein case, the plaintiffs alleged that the victim fell as a result of a variety of factors, including not only the slope of the ramp but also the presence of a slippery substance and the absence of a handrail. (Amended Verified Bill of Particulars, attached as part of Exh. D to Asch 6/10/09 Aff., ¶¶ 3, 12). Due to the additional causal factors in that case, it is not a valid comparator for purposes of demonstrating whether the ramp's slope was dangerous by itself.

On the other hand, for purposes of notice, what is important is that the prior litigation brought to the defendants' attention the possibility that the slope of the ramp was unsafe. The fact that other dangerous conditions were also alleged in the Lewis-Goldstein case does not diminish the value of the evidence on the notice issue. More significant is the assertion that Ms. Lewis-Goldstein may have fallen on a portion of the ramp where the slope was different from where Mr. Melini's accident occurred. However, the precise location where the accidents occurred and the extent to which the slope differed are issues that are subject to proof at trial.*fn2

Accordingly, the plaintiff may present evidence of the prior accident, but solely on the issue of notice. In addition, that evidence may be introduced against East 71st and 71st LC, but not against GMC, as GMC was not a party to the earlier suit.

B. Testimony of Scott Silberman

Next, the defendants seek to preclude the testimony of the plaintiff's engineering expert, Scott Silberman, on the basis that his opinion does not meet the standards for admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This issue was previously decided against the defendants when they sought to preclude Mr. Silberman's testimony in the context of their motion for summary judgment. See Melini v. 71st Lexington Corp., No. 07 Civ. 701, 2009 WL 413608, at *4-7 (S.D.N.Y. Feb. 13, 2009). There is no occasion to revisit this question.

Plaintiff's Motion

A. Testimony of Dr. Ronald Grelsamer

The defendants intend to proffer the opinion of Dr. Ronald Grelsamer, an orthopedic surgeon, to the effect that the injury suffered by Mr. Melini -- a ruptured quadriceps tendon -- was attributable to "vascular alteration, pre-existing tendonosis, and diabetes," and not to the fall on the ramp. (Expert Witness Disclosure ("Grelsamer Disclosure"), attached as Exh. D to Affirmation of Ian Asch dated June 3, 2009 ("Asch 6/3/09 Aff."), ΒΆ 4). The plaintiff seeks to preclude such testimony as no more than "subjective belief or ...

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