Murphy v. Conner ( 1993 )

Mikoll, J. (dissenting).

We respectfully dissent.

Plaintiffs’ complaint against defendants, the successors in interest to the original designers and construction manager for Eastowne Mall, alleges negligence in the design and condition of the floor of the mall. An expert’s affidavit offered on the motion indicated that ceramic tiles for the floor surface had a friction coefficient of 0.4 which he stated is below acceptable professional standards in the trade, resulting in an unreasonably hazardous floor.

Unlike Kline v Abraham (178 NY 377) and the subsequent litany of cases dealing with an owner’s maintenance of floors in which his responsibility is alleged to be due to having caused a dangerous condition or allowing one to continue, we have here an expert’s affidavit to support the assertion of negligence against the designers and construction managers; thus, a question of fact was raised which requires resolution by trial.

Custom and usage may be used to prove what ought to be done and may be used to show that a defendant has fallen below the required standard which, though not conclusive on the question of negligence, may bear on what is reasonable conduct under all the circumstances, the test of negligence (see, Trimarco v Klein, 56 NY2d 98, 105).

Plaintiffs presented enough evidence to send the question of negligence in this case to the jury. The expert’s affidavit, the letter written to defendants by defendant Newman & Doll’s design engineer stating that the City of Elmira was concerned over the potential hazard the glazed tiles constituted and defendants’ knowledge of a 1985 fall on the premises as a result of which damages for injuries were sought by another litigant alleging dangerous design and condition of the flooring raise a question of fact requiring resolution by a jury.

The decision of Supreme Court denying summary judgment should be affirmed.

Cardona, J., concurs. Ordered that the order is reversed, on the law, without costs, motion granted, summary judgment awarded to defendants Newman & Doll, Cahn Engineering and Greiner, Inc., and complaint dismissed against said defendants.