Defense Digest, Vol. 27, No. 5, December 2021

Go See for Yourself: The Fourth Department Rejects Expert Opinion Where the Expert Did Not Personally Observe or Measure the Condition

Key Points:

  • Facts upon which an expert will rely must be “fairly inferable” from the evidence presented.
  • An expert cannot base precise measurements solely on photographs without actually measuring the object in question.
  • Whenever possible, an expert should personally conduct a site inspection.

A question that often arises in litigation is when to retain an expert and whether to have that expert conduct a site inspection or otherwise personally examine evidence. In July of this year, the New York Supreme Court, Appellate Division, Fourth Department addressed this issue in Depczynski v. Shuster, 196 A.D.3d 1105 (4th Dept. 2021), which involved a dispute between a homeowner and a contractor related to the contractor’s alleged failure to properly replace an existing porch foundation footer. In affirming the trial court’s grant of summary judgment to the homeowner, the court rejected an opinion by the contractor’s expert because the expert did not personally observe or measure the depth of the footer and relied solely on photographs of the condition.

Depczynski, the homeowner, commenced the action, alleging that the defendant contractor breached their agreement for removal and replacement of the front porch in question by failing to replace an existing foundation footer with one that was set at a depth of 42 inches below grade, as required by the New York State Building Code. The homeowner alleged that she could not move forward with any other aspect of the project until the foundation was removed and reinstalled at the proper depth. During the course of the litigation, the parties entered into a stipulation and settlement agreement pursuant to which they excavated the area adjacent to the front porch to ascertain whether the footer was placed at the appropriate depth. Following this excavation, both the homeowner and contractor moved for summary judgment, each seeking enforcement of the settlement agreement in their favor.

In support of her motion, the homeowner submitted affidavits from four experts, one of whom was the code enforcement officer tasked with approving the project, who personally observed and measured the excavated footer and determined that it was less than 42 inches in depth and, thus, not code compliant. In opposition to the homeowner’s motion and in support of its own cross-motion for summary judgment, the contractor submitted an affidavit from a retired code enforcement official who opined, based on his review of photographs of the excavation, that the footer had been placed at a depth of more than 42 inches and, therefore, did comply with code. The Fourth Department held that the affidavit by the retired official was insufficient to raise a triable issue of fact.

In its ruling in favor of the homeowner, the court noted that, typically, an expert may base his or her conclusions on a review of photographs without personally conducting a physical inspection, citing Pereira v. Quogue Field Club of Quogue, Long Is., 71 A.D.3d 1104 (2nd Dept. 2010). Pereira dealt with a claim for personal injury while the plaintiff was operating a steamroller. The plaintiff claimed there was no cover encasing the pulley on the steamroller. When he tried to start the machine by pulling a string installed for that purpose, his hand was pulled towards the exposed, rapidly spinning pulley, resulting in amputation of portions of his fingers. The plaintiff’s expert attributed the injury to the absence of a pulley cover. Despite the defendant’s contention that the expert’s affidavit was inadequate because he did not physically inspect the steamroller, the Second Department nonetheless affirmed the trial court’s denial of the defendant’s motion for summary judgment because the expert had reviewed photographs of the relevant steamroller and provided a detailed analysis.

Noting the general principle that experts may rely on photographs, the Fourth Department nevertheless held that this rule does not apply where an expert bases precise measurements solely on photographs and without actually measuring the object in question. In so holding, the court cited Davidson v. Sachem Cent. School Dist., 300 A.D.2d 276 (2nd Dept. 2002), where the question was whether a school district created an unsafe or defective condition in the maintenance, installation, and design of playground apparatus. In opposition to the school district’s motion for summary judgment, the plaintiff submitted an expert opinion that the apparatus was inherently dangerous as designed and/or installed because it did not meet the American Society of Testing Material’s standards. In addition to a finding that the quoted standards were merely guidelines and not mandatory, the Second Department noted that the expert’s conclusion was not based on measurements taken of the actual playground apparatus but, rather, from measurements derived from photographs taken by others and from the manufacturer’s specifications. The Davidson court held that it is essential that the facts upon which the expert relies must be “fairly inferable” from the evidence. In Davidson, there were too many variables for the expert to determine the exact measurements of the playground apparatus from the photographs. 

Likewise, the court in Depczynski found that there were too many variables for the contractor’s expert to determine from photographs the exact measurements of the foundation footer for the front porch. Because it was undisputed that the contractor’s expert did not personally observe or measure the depth of the footer and relied solely on photographs of the condition, the Fourth Department concluded that the trial court properly determined that the contractor did not raise an issue of fact in opposition to the plaintiff’s motion.

While there is sometimes an instinct to restrict an expert’s activity out of a concern for reducing litigation costs, the Depczynski case is a good reminder that, whenever possible, it is preferable to have an expert conduct a site visit to observe a condition firsthand, particularly in matters of alleged defective construction, in order to confirm the facts upon which the expert will rely in reaching his or her opinions.

*Ian is a shareholder in our New York City office. He can be reached at 212.376.6406 or IJAntonoff@mdwcg.com.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.