Alfieri v. Butler

Appellate Division of the Supreme Court of New York

Alfieri v. Butler

38 A.D.2d 672, 327 N.Y.S.2d 108, 1971 N.Y. App. Div. LEXIS 2854

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 2, 1971

StatusPublished

This text of 38 A.D.2d 672 (Alfieri v. Butler) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alfieri v. Butler, 38 A.D.2d 672, 327 N.Y.S.2d 108, 1971 N.Y. App. Div. LEXIS 2854 (N.Y. Ct. App. 1971).

Pincite

Opinion

Judgment unanimously affirmed, without costs. Memorandum: Plaintiffs’ expert testified that he and other architects in the Syracuse area recommend that driveway and parking areas be constructed without the use of loose gravel. That was not proper evidence upon the issue of the custom and practice in the Syracuse area with respect to construction of such areas, for which it was offered, and the court properly struck it. Since the expert’s testimony also showed that there was common use of such construction in Syracuse, that testimony did not tend to establish the existence of a custom or practice different from that employed by defendants (see Reisner v. New York Kosher Provisions, 25 A D 2d 511), and the court properly excluded such evidence from the jury’s consideration on the question of defendant’s negligent construction and maintenance of the parking area in question (McGee v. Adams Paper & Twine Co., 26 A D 2d 186, 197-198, affd. on opinion of Appellate Division, 20 N Y 2d 921; and, see, 1 N Y PJI 2:16, p. 109). The expert having demonstrated that there was no customary practice of parking lot construction different from that employed by defendants, we do not reach the question of the effect of CPLR 4515 and Tarlowe v. Metropolitan Ski Slopes (28 N Y 2d 410, 414) upon the latitude which the trial court should accord in the examination of an expert. (Appeal from judgment of Onondaga Trial Term, dismissing complaint in negligence action.) Present—Marsh, J. P., Witmer, Gabrielli, Moule and Cardamone, JJ.

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Judgment unanimously affirmed, without costs. Memorandum: Plaintiffs’ expert testified that he and other architects in the Syracuse area recommend that driveway and parking areas be constructed without the use of loose gravel. That was not proper evidence upon the issue of the custom and practice in the Syracuse area with respect to construction of such areas, for which it was offered, and the court properly struck it. Since the expert’s testimony also showed that there was common use of such construction in Syracuse, that testimony did not tend to establish the existence of a custom or practice different from that employed by defendants (see Reisner v. New York Kosher Provisions, 25 A D 2d 511), and the court properly excluded such evidence from the jury’s consideration on the question of defendant’s negligent construction and maintenance of the parking area in question (McGee v. Adams Paper & Twine Co., 26 A D 2d 186, 197-198, affd. on opinion of Appellate Division, 20 N Y 2d 921; and, see, 1 N Y PJI 2:16, p. 109). The expert having demonstrated that there was no customary practice of parking lot construction different from that employed by defendants, we do not reach the question of the effect of CPLR 4515 and Tarlowe v. Metropolitan Ski Slopes (28 N Y 2d 410, 414) upon the latitude which the trial court should accord in the examination of an expert. (Appeal from judgment of Onondaga Trial Term, dismissing complaint in negligence action.) Present—Marsh, J. P., Witmer, Gabrielli, Moule and Cardamone, JJ.

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Bluebook (online)

38 A.D.2d 672, 327 N.Y.S.2d 108, 1971 N.Y. App. Div. LEXIS 2854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alfieri-v-butler-nyappdiv-1971.