Week of August 6-12

This week, in Schmidt v. One NY Plaza Co. LLC, 2017 NY Slip Op 06407 (1st Dept. 2017), the Appellate Division, First Department addressed the tricky issue of whether an engineer’s opinion regarding an “industry standard” can raise an issue of fact in opposition to a summary judgment motion. The “industry standard” issue is often mentioned, but rarely explained. In this decision the First Department shed some light on what it means. The decision can be found on Lexis.

Since many, many plaintiff’s engineers claim “industry standards” in this context (“Stanley Fein, will opine”), this decision can be used to help persuade the court that they have failed to raise a genuine issue of fact.

In Schmidt, the plaintiff fell off a service ramp. The Appellate Division reversed the lower court and granted summary judgment to the defendant, dismissing the complaint. The court found that the defendant met its prima facie burden with proof that the ramp did not violate any building codes. The court credited the defendant’s architect's report, explaining that the ramp was not negligently designed, and that there was no violation of the 1968 building code, OSHA, the National Fire Protection Agency "Life Safety Code," or the ATSM.

In opposition, “plaintiff averred that its expert would testify that the service ramp was defective and that the defects were in violation of ‘good, proper, and accepted building and engineering standards’ for ramps in equivalent buildings and were in violation of the New York City Building Code and industry standards at the time of construction.”

The court rejected that position and explained: “plaintiff failed to raise a triable issue of fact as to any violation of any industry-wide standard at the time of construction. He failed to point to any industry-wide standards that may be applicable. Plaintiff's expert failed to ‘offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry at the relevant time."

In other words, to raise an issue of fact on “industry standards” you need “concrete proof” rather than just an expert’s opinion, for example a “published industry or professional standard” or some form of evidence “that such a practice had been generally accepted in the relevant industry at the relevant time.” Since plaintiff’s experts almost always fail to submit that kind of evidence, their references to “industry standards” will be insufficient under Schmidt and the case law cited in Schmidt.