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Experts Are Not Always Right - Or Accurate

November 7, 2012

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In <em>Gibbs</em> <em>v</em>. <em>3220</em> <em>Netherland</em> <em>Owners</em> <em>Corp</em>., the First Department recognized that just because an expert claims a building code was violated, it does not necessarily mean that there was a code violation, or that the expert is even assessing the correct code. The First Department upheld the trial court’s decision that the stairs on which Gibbs allegedly slipped and fell (leading from the first floor to the lobby) were not "exit" stairs within the meaning of two building code provisions. Thus, the expert’s opinion that the stairs violated relevant codes to “exit” stairs, failed to raise an issue of fact. The court further disparaged the expert by recognizing that an opinion regarding the absence of slip resistant material lacked probative value because the expert failed to identify any minimum requirement of non-skid material. The positive defense lesson to be learned is that simply because an expert is retained, it does not mean that a question of fact, sufficient to defeat a motion for summary judgment, will automatically be created.


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