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First Department Issues Reminder Regarding Expert Affidavits

January 6, 2012 • Posted By Joseph A. French • Trial Practice

Recently, in the case Cassidy v. Highrise Hoisting, et al., 2011 NY Slip Op 07936, 932 N.Y.S.2d 456 (1st Dep’t 2011), the First Department addressed the issue of expert opinions in regard to summary judgment motions.  The underlying action involved a company which had installed a sidewalk bridge, hoistway and temporary loading dock.  The platform was approximately four to five feet above the ground or about the “height of a trailer truck”.  Near the loading area, there was a removal horizontal pipe railing that was eight feet long.  Plaintiff was a laborer, who while waiting for the hoist to come to the loading dock level, leaned against the dock railing which became dislodged and fell from a vertical post.  He, in turn, fell.  The Court upheld the lower court’s finding that plaintiff’s work was protected by Labor Law §240(1), but found that plaintiff could not recover under Labor Law §241(6).  The Court also noted that plaintiff’s common law Labor Law §200 claims were properly dismissed due to the fact that defendants were not on notice about the railing which, although it had been detached for a delivery, had been improperly re-attached. 

Plaintiff’s submitted an affidavit of a site safety expert.  The Court found that this expert’s affidavit did not create questions of fact warranting denial of summary judgment.  “An expert’s opinion should be disregarded where no authority, treatise, standard, building code, article or other corroborating evidence is cited to support the assertion concerning an alleged deviation from good and accepted industry custom and practice” (cite omitted).  He quoted another case by noting that, “Before a claimed industry standard is accepted by a court as applicable to the facts of the case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place” (cite omitted). 

For any practitioner, this is sound advice.  Expert affidavits are often wantonly submitted, not only late following the filing of the Note of Issue, which has been ruled improper by many courts considering summary judgment motions, but also without proper support or citations or references to any particular authority, standard or billing code.  Lacking such other “corroborating evidence”, practitioners should highlight this is trying to dismiss the validity of the expert affidavit in opposing the adversary’s motion for summary judgment.  Similarly, of course, the moving party must work with the expert to establish the necessary basis upon which to form the expert opinion and prove that an industry-wide standard did exist at the time of the incident, establish why and how this industry standard came into effect, and why it is applicable to the facts at hand.  To ignore this advise could easily undermine your party’s summary judgment motion or its opposition to one, not to mention effort and money being wasted on same. 

This case was cited in the New York Law Journal, November 15, 2011, p. 25.