        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

293
CA 11-01606
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


GAIL L. HARRIS, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

ROBERT SEAGER, JAMES BRIGANTI AND MARIE BRIGANTI,
DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


LAW OFFICE OF RONALD D. ANTON, NIAGARA FALLS (SCOTT A. STEPIEN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

LAW OFFICES OF LAURIE G. ODGEN, BUFFALO (DANIEL J. CAFFREY OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Niagara County (Sara
S. Sperrazza, A.J.), entered April 21, 2011 in a personal injury
action. The judgment dismissed the complaint upon a directed verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, defendants’ motion for
a directed verdict is denied, the complaint is reinstated and a new
trial is granted.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when she tripped over a raised
threshold in a doorway while exiting a store owned by defendants James
Briganti and Marie Briganti and operated by defendant Robert Seager.
The door through which plaintiff exited the store led directly to an
exterior stairway with a handrail on one side only. According to
plaintiff, as she was falling down the stairs after tripping on the
threshold, she reached for a railing on the side of the stairway where
there was none, and she therefore tumbled down the stairs and injured
her right foot and leg. Shortly before trial, Supreme Court granted
the motion of defendants to preclude plaintiff’s proposed expert
witness from testifying at trial. After plaintiff rested at trial,
defendants moved for a directed verdict dismissing the complaint,
contending, inter alia, that plaintiff failed to establish that they
had actual or constructive notice that the alleged defects in the
property were dangerous. The court granted the motion, stating that
“there is no way that there [is] any legal basis to put before the
jury the issue of notice or causation,” and entered judgment
dismissing the complaint.

     We conclude that the court erred in granting defendants’ motion
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                                                         CA 11-01606

for a directed verdict. The evidence proffered by plaintiff clearly
established that defendants had constructive, if not actual, notice of
the allegedly dangerous conditions on the property, i.e., the raised
threshold and the absence of a handrail on one side of the stairway.
Indeed, as defendants conceded, those conditions had existed on the
property for years prior to plaintiff’s accident. Contrary to
defendants’ contention, plaintiff was not required to establish that
defendants had notice of the allegedly dangerous nature of the
threshold and stairway. To establish the notice element of her
negligence claim, plaintiff was required to demonstrate that
defendants had notice of conditions that she alleged were dangerous,
but she was not required to demonstrate that defendants knew that
those conditions were dangerous (see generally PJI 2:90; Tanguma v
Yakima County, 18 Wash Ct App 555, 563, 569 P2d 1225, 1230, review
denied 90 Wash 2d 1001). To the extent that defendants rely on dicta
in the decision of the Third Department in Richardson v Rotterdam Sq.
Mall (289 AD2d 679, 682) that suggests otherwise, we decline to follow
it. We note that, in support of their motion for a directed verdict,
defendants did not contend the alleged defects in the property were
“trivial as a matter of law” (Sokolovskaya v Zemnovitsch, 89 AD3d 918,
918; see generally Gafter v Buffalo Med. Group, P.C., 85 AD3d 1605,
1606; Tully v Anderson’s Frozen Custard, Inc. [appeal No. 2], 77 AD3d
1474, 1475), nor do they advance that contention on appeal.

      Finally, we reject plaintiff’s contention that the court abused
its discretion in granting the motion of defendants to preclude the
testimony of plaintiff’s expert based on her failure to comply with
CPLR 3101 (d) (1). “It is within the sound discretion of the trial
court to determine whether a witness may testify as an expert and that
determination should not be disturbed ‘in the absence of serious
mistake, an error of law or abuse of discretion’ ” (Saggese v Madison
Mut. Ins. Co., 294 AD2d 900, 901, quoting Werner v Sun Oil Co., 65
NY2d 839, 840). Given the deficiencies in plaintiff’s expert
disclosure, we perceive no abuse of the court’s discretion in this
case.




Entered:   March 23, 2012                      Frances E. Cafarell
                                               Clerk of the Court
