At trial in Bronx County Supreme Court, plaintiff successor of deceased patient who was treated in defendant hospital's emergency room sought to lead expert testimony from an internal medicine doctor who did not express he had a background or knowledge in emergency medicine. The Supreme Court declined to allow that doctor's expert testimony. The First Department unanimously reversed and allowed the plaintiff''s expert doctor's testimony in Ocasio-Gary v Lawrence Hosp. 2010 NY Slip Op 00003.
"The trial court should not have rejected the expert's opinion on the ground that the expert failed to expressly state that he or she possessed the requisite background and knowledge in emergency medicine to render an opinion. The expert, who is board certified in internal medicine, is qualified to render an opinion as to diagnosis and treatment with respect to the symptoms presented by the decedent. In contrast, the expert's affirmation in Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]), cited by the trial court, failed to indicate either the expert's specialty or that he or she possessed the requisite knowledge to furnish a reliable opinion."
In the cited case of Browder v New York City Health & Hosps. Corp. (37 AD3d 375 [2007]) First Department had held:
"In opposition to defendant's prima facie showing based on the hospital records, the deposition testimony and the affirmation of an expert pediatric urologist with many years of experience in that field, plaintiff in this medical malpractice action failed to raise an issue of fact. The affirmation of plaintiff's purported expert was insufficient since it did not indicate either the affiant's specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion (cf. Joswick v Lenox Hill Hosp., 161 AD2d 352, 354-355 [1990]). The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record (see Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]), was based on a hospital record notation whose source was unknown and thus inadmissible (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1999]), and was otherwise lacking in evidentiary foundation. We decline to address plaintiff's unpreserved spoliation argument."
Court of Appeals: Supreme Court's Granting of Motion To Preclude Evidence Of Expert Witness's Interest In Defendant's Insurance Carrier Was Proper
The Court of Appeals examined a question faced often by counsel in matters where the existence of a defendant's liability insurance is at risk of being raised when examining a witness as to his or her interest in a liability insurance carrier connected to the defendant. The Court of Appeals found that the Supreme Court, in a dental malpractice jury trial, had not erred in allowing defendant's motion to preclude plaintiff's counsel's cross-examination of an expert witness as to his shareholding in the defendant dentist's malpractice liability insurer in Salm v Moses 2009 NY Slip Op 07479.
In granting the defendant's counsel's in limine motion to preclude this questioning of the witness, who with the defendant also had an interest in the defendant's insurance carrier, the Supreme Court had found that the probative value of the questioning was outweighed by the prejudicial effect of revealing the existence of the insurance. First Department affirmed and was affirmed in turn by the Court of Appeals.
"Although cross-examination is a matter of right (see Matter of Friedel v Board of Regents of Univ. of State of N.Y., 296 NY 347, 352 [1947]), it is well settled that its scope and manner are left to the sound discretion of the trial court (see Bernstein v Bodean, 53 NY2d 520, 529 [1981]; Feldsberg v Nitschke, 49 NY2d 636, 643 [1980], rearg denied 50 NY2d 1059 [1980]). Therefore, absent an abuse of discretion, a trial court's determination is beyond our review.
Evidence that a defendant carries liability insurance is generally inadmissible (see Leotta v Plessinger, 8 NY2d 449, 461 [1960], rearg denied 9 NY2d 688 [1961]; Simpson v Foundation Co., 201 NY 479, 490 [1911]). The rationale underlying this rule is twofold. First, "it might make it much easier to find an adverse verdict if the jury understood that an insurance company would be compelled to pay the verdict" (Loughlin v Brassil, 187 NY 128, 135 [1907]). Second, evidence of liability insurance injects a collateral issue into the trial that is not relevant as to whether the insured acted negligently. Although we have acknowledged that liability insurance has increasingly become more prevalent and that, consequently, jurors are now more likely to be aware of the possibility of insurance coverage, we have continued to recognize the potential for prejudice (see Oltarsh v Aetna Ins. Co., 15 NY2d 111, 118-119 [1965]; see also Barker and Alexander, Evidence in New York State and Federal Courts § 4:63, at 260-261 [5 West's NY Prac Series 2001] ["Because the prejudice quotient is obvious, the rule barring such evidence is one of the least controversial in the law of evidence"]).
The rule, however, is not absolute. If the evidence is relevant to a material issue in the trial, it may be admissible notwithstanding the resulting prejudice of divulging the existence of insurance to the jury. For example, we have held that evidence that a defendant insured a premises is relevant to demonstrate ownership or control over it (see Leotta, 8 NY2d at 462). Likewise, it was proper to allow cross-examination of a physician regarding the fact that the defendant's insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness (see Di Tommaso v Syracuse Univ., 172 App Div 34, 37 [4th Dept 1916], affd without opn 218 NY 640 [1916]).
Here, we perceive no abuse of discretion in Supreme Court's evidentiary ruling. Such evidence may be excluded if the trial court finds that the risk of confusion or prejudice [*3]outweighs the advantage in receiving it (see Kish v Board of Educ. of City of N.Y., 76 NY2d 379, 384-385 [1990]). In this case, plaintiff speculated during the colloquy that a verdict in defendant's favor could result in a $100 benefit — at the time of the expert's death, disability or retirement — based on the expert's shareholder status in OMSNIC. The trial court's finding that any such financial interest was likely "illusory" and that the possibility of bias was attenuated was reasonable on this record. Absent a more substantial connection to the insurance company — or at least something greater than a de minimis monetary interest in the carrier's exposure — the court did not engage in an abuse of discretion in precluding the testimony. We note that a voir dire of an expert outside the presence of the jury can better aid the court in exploring the potential for bias. "
Because plaintiff's counsel did not seek that the witness be cross-examined in the absence of the jury, it was held that the Supreme Court was correct in granting the motion before hearing the evidence in question and reserving its decision.
In granting the defendant's counsel's in limine motion to preclude this questioning of the witness, who with the defendant also had an interest in the defendant's insurance carrier, the Supreme Court had found that the probative value of the questioning was outweighed by the prejudicial effect of revealing the existence of the insurance. First Department affirmed and was affirmed in turn by the Court of Appeals.
"Although cross-examination is a matter of right (see Matter of Friedel v Board of Regents of Univ. of State of N.Y., 296 NY 347, 352 [1947]), it is well settled that its scope and manner are left to the sound discretion of the trial court (see Bernstein v Bodean, 53 NY2d 520, 529 [1981]; Feldsberg v Nitschke, 49 NY2d 636, 643 [1980], rearg denied 50 NY2d 1059 [1980]). Therefore, absent an abuse of discretion, a trial court's determination is beyond our review.
Evidence that a defendant carries liability insurance is generally inadmissible (see Leotta v Plessinger, 8 NY2d 449, 461 [1960], rearg denied 9 NY2d 688 [1961]; Simpson v Foundation Co., 201 NY 479, 490 [1911]). The rationale underlying this rule is twofold. First, "it might make it much easier to find an adverse verdict if the jury understood that an insurance company would be compelled to pay the verdict" (Loughlin v Brassil, 187 NY 128, 135 [1907]). Second, evidence of liability insurance injects a collateral issue into the trial that is not relevant as to whether the insured acted negligently. Although we have acknowledged that liability insurance has increasingly become more prevalent and that, consequently, jurors are now more likely to be aware of the possibility of insurance coverage, we have continued to recognize the potential for prejudice (see Oltarsh v Aetna Ins. Co., 15 NY2d 111, 118-119 [1965]; see also Barker and Alexander, Evidence in New York State and Federal Courts § 4:63, at 260-261 [5 West's NY Prac Series 2001] ["Because the prejudice quotient is obvious, the rule barring such evidence is one of the least controversial in the law of evidence"]).
The rule, however, is not absolute. If the evidence is relevant to a material issue in the trial, it may be admissible notwithstanding the resulting prejudice of divulging the existence of insurance to the jury. For example, we have held that evidence that a defendant insured a premises is relevant to demonstrate ownership or control over it (see Leotta, 8 NY2d at 462). Likewise, it was proper to allow cross-examination of a physician regarding the fact that the defendant's insurance company retained him to examine the plaintiff in order to show bias or interest on the part of the witness (see Di Tommaso v Syracuse Univ., 172 App Div 34, 37 [4th Dept 1916], affd without opn 218 NY 640 [1916]).
Here, we perceive no abuse of discretion in Supreme Court's evidentiary ruling. Such evidence may be excluded if the trial court finds that the risk of confusion or prejudice [*3]outweighs the advantage in receiving it (see Kish v Board of Educ. of City of N.Y., 76 NY2d 379, 384-385 [1990]). In this case, plaintiff speculated during the colloquy that a verdict in defendant's favor could result in a $100 benefit — at the time of the expert's death, disability or retirement — based on the expert's shareholder status in OMSNIC. The trial court's finding that any such financial interest was likely "illusory" and that the possibility of bias was attenuated was reasonable on this record. Absent a more substantial connection to the insurance company — or at least something greater than a de minimis monetary interest in the carrier's exposure — the court did not engage in an abuse of discretion in precluding the testimony. We note that a voir dire of an expert outside the presence of the jury can better aid the court in exploring the potential for bias. "
Because plaintiff's counsel did not seek that the witness be cross-examined in the absence of the jury, it was held that the Supreme Court was correct in granting the motion before hearing the evidence in question and reserving its decision.
Supreme Court, New York County: How CPLR 2106 Revived Otherwise Inadmissible Expert Evidence And Saved The Plaintiff's Claim In A "Serious Injury" CPLR 3212 Motion
In Uribe v Amboy Bus Co., Inc (24 Misc 3d 1217(A) 2009 NYSlipOp 51481(U)) the plaintiff, a taxi operator who was injured in an auto accident, commenced an action against defendant driver and bus operator who after discovery, moved for summary judgment against plaintiff under CPLR 3212 for plaintiff's failure to establish a "serious injury" as required under the statutory threshold provision in the Comprehensive Motor Vehicle Insurance Reparation Act of 1974 & Insurance Law 5102(d).
In addition to being an example of how CPLR 2106 is applied to allow otherwise inadmissible expert evidence, this decision is instructive with respect to the use of police accident reports and photographs in such cases.
On the plaintiff's standard of proof:
In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).
On onus:
The defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra; see also Gaddy v Eyler, supra; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]). Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]).
But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be [*4]true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra).
The court found that the defendants had met their burden and proved that the plaintiff had not suffered a "serious injury":
Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, 4 NY3d 566 [2005]; Gaddy v Eyler, supra; Perez v Rodriguez, supra). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1998]).
Despite the critical evidence in the MRI reports being neither sworn nor affirmed, it was held admissible under CPLR 2106, eventually leading the plaintiff to successfully resist the CPLR 3212 motion:
CPLR 2106
Affirmation of truth of statement by attorney, physician, osteopath or dentist
The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit
Dr. Waxman's December 8, 2006 MRI lumbar and cervical spine medical reports are unaffirmed and unsworn and would usually be inadmissible in this motion (see Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106.) However, they are admissible evidence here, because Dr. Waxman's MRI medical records were properly referenced and reviewed by defendants' medical expert (Dr. Feuer[FN2]) in his medical affirmation (see Pommells v Perez, 4 NY3d 566, 577, n 5 [2005]; Navedo v Jaime, 32 AD3d 788, 822 NYS2d 43, [1st Dept 2004]; Brown v Achy, 9 AD3d 30, 776 NYS2d 56 [1st Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [1st Dept 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 443 [1st Dept 2002]). Angel's physician, Dr. Boppana, stated in his medical affirmation that he reviewed the [*6]plaintiff's MRI films[FN3] and incorporated their results in his conclusions.
Dr. Waxman's MRI reports indicated that plaintiff suffered a broad based disc herniation at L4-L5 with left foraminal stenosis and a disc bulge at L3-L4 with anterior thecal sac effacement, and multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement.
...
Here, though the evidence presented by Angel does not rebut defendants' proof that he did not suffer serious injury under the Insurance Law § 5102 (d) categorizations of a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body function or system; or the 90/180-day category, the objective criteria and their norms as presented in Dr. Boppana's medical affirmation has raised material issues of fact as to whether or not Angel sustained injuries under the Insurance Law § 5102 (d) category of a significant limitation of use of a body function or system category (see Pommells v Perez at 577).
The defendants also moved for summary judgment on liability, and sought to lead photographs alleged to have been taken by another of the defendant bus company's employees. That attempt was not successful, despite attempts by counsel to affirm the photographs:
The defendants also offer prime facie photographs allegedly taken after the accident by another bus driver employed by the defendant Amboy Bus Company who was just passing by the accident (see Notice of Motion, Exhibit I, Affirmation in Opposition, Exhibit 4). This unidentified bus driver allegedly named "Carmen" is never properly identified, deposed nor submitted an affidavit to authenticate the photographs. Moreover, the defendant Davis when asked about the photographs he replied that he never saw the photos and was unaware how were taken (id., Exhibit G, at 35-36):
The Court holds these photographs are inadmissible on this motion. We rely upon the Appellate Division, First Department's recent holding in Coleman v Maclas, 61 AD3d 569, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]. The Court affirmed that "the [trial] court properly disregarded the uncertified police reports and unauthenticated photographs as they were inadmissible hearsay (see Figueroa v Luna, 281 AD2d 204, 206, 721 NYS2d 635 [2001] )." The Court held "Further, the affirmation by plaintiff's counsel, who had no personal knowledge of the accident, was not admissible evidence... (see Johnson v Phillips, 261 AD2d 269, 270-271, 690 NYS2d 545 [1999] )." [*8]
The defendants further sought to lead a police accident report, without calling either the police officer who had authored that report, or who had witnessed the immediate aftermath of the accident and witnessed spontaneous statements or declarations against interest made by persons who witness or who were involved in the accident. That attempt by the defendants to introduce the contents of the police accident report failed:
In addition, defendants (uncertified) copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)) is also inadmissible to prove liability. Uncertified police accident reports are inadmissible to indicate a parties liability because the police officer who prepared the report was not an eyewitness to the accident as it constitutes inadmissible hearsay, (see Coleman v Maclas, 61 AD3d 569, 877 NYS2d 297, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]; Figueroa v Luna, 281 AD2d 204,721 NYS2d 635 [1st Dept 2001]; Ann Connors v. Duck's Cesspoool Services, Ltd., 144 AD2d 329, 533 NYS2d 942 [1st Dept 1988]; Murray v Donlan, 77 AD2d 337, 433 NYS2d 184 [1st Dept 1980]).
Moreover, the Appellate Division, First Department also recently decided Soto-Maroquin v Mellet __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept, June 4 2009], (10 days after its decision on April 23, 2009 in Coleman v Maclas, supra) that uncertified police accident reports that contain the statements made by the parties to the police officer preparing the accident report and falls into a hearsay exception under "spontaneous statements" or "declaration against interests" are also inadmissible. (cf. Soto-Maroquin v Mellet, Sup Ct, NY County, October 14, 2008, Wooten J. Index No. 108798/07 [uncertified police report contained admission from defendant], affd __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept 2009] ["consideration of uncertified police report was harmless in view of defendant's passenger's affidavit attesting to what defendants object to in the police report, namely, that defendants' vehicle struck plaintiff's vehicle in the rear"]; compare Voskin v Lemel, 52 AD3d 503, 503, 859 NYS2d 489 [2d Dept 2008] ["plaintiff's case buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him"]; 2 McCormick on Evidence 2d §§ 271 and 272).
The defendants' motion was denied.
In addition to being an example of how CPLR 2106 is applied to allow otherwise inadmissible expert evidence, this decision is instructive with respect to the use of police accident reports and photographs in such cases.
On the plaintiff's standard of proof:
In order to satisfy the statutory threshold, the plaintiff must submit competent objective medical evidence of his or her injuries, based on the performance of objective tests (Grossman v Wright, 268 AD2d 79, 707 NYS2d 233 [2d Dept 2000]; Lopez v Senatore, 65 NY2d 1017, 1019 [1985]). Subjective complaints alone are insufficient to establish a prima facie case of a serious injury (Gaddy v Eyler, 79 NY2d 955, 957 [1992]; Scheer v Koubek, 70 NY2d 678, 679 [1987]).
On onus:
The defendants bear the initial burden of establishing the absence of a serious injury by tendering evidentiary proof in admissible form eliminating any material issues of fact from the case (Toure v Avis Rent A Car Sys., supra; see also Gaddy v Eyler, supra; Pirrelli v Long Is. R.R., 226 AD2d 166, 641 NYS2d 240 [1st Dept 1996]). Defendant may rely either on the sworn or affirmed statements of their examining physician, plaintiff's deposition testimony and plaintiff's unsworn physician's records (Newton v Drayton, 305 AD2d 303, 760 NYS2d 38 [1st Dept 2003]; Fragale v Geiger, 288 AD2d 431, 733 NYS2d 901 [2d Dept 2001]; Pagano v Kingsbury, 182 AD2d 268, 587 NYS2d 56 [2d Dept 1992]).
But, the Courts have unanimously held that a party may not use an unsworn medical report prepared by the party's own physician on a motion for summary judgment (see Grasso v Angerami, 79 NY2d 813 [1991]; Offman v Singh, 27 AD3d 284, 813 NYS2d 56 [1st Dept 2006]). Moreover, CPLR § 2106 requires a physician's statement be affirmed (or sworn) to be [*4]true under the penalties of perjury. An affirmed physician's report demonstrating that plaintiff was not suffering from any disability or consequential injury resulting from the accident is sufficient to satisfy a defendant's burden of proof (see Gaddy v Eyler, supra).
The court found that the defendants had met their burden and proved that the plaintiff had not suffered a "serious injury":
Once a defendant has made such a showing, the burden shifts to the plaintiff to come forward with prima facie evidence, in admissible form, to rebut the presumption that there is no issue of fact as to the threshold question (see Pommells v Perez, 4 NY3d 566 [2005]; Gaddy v Eyler, supra; Perez v Rodriguez, supra). A medical affirmation or affidavit based on a physician's own examination, tests, and review of the record, can support the existence and extent of a plaintiff's serious injury (O'Sullivan v Atrium Bus Co., 246 AD2d 418, 688 NYS2d 167 [1st Dept 1998]).
Despite the critical evidence in the MRI reports being neither sworn nor affirmed, it was held admissible under CPLR 2106, eventually leading the plaintiff to successfully resist the CPLR 3212 motion:
CPLR 2106
Affirmation of truth of statement by attorney, physician, osteopath or dentist
The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same force and effect as an affidavit
Dr. Waxman's December 8, 2006 MRI lumbar and cervical spine medical reports are unaffirmed and unsworn and would usually be inadmissible in this motion (see Grasso v Angerami, supra; Offman v Singh, supra; CPLR § 2106.) However, they are admissible evidence here, because Dr. Waxman's MRI medical records were properly referenced and reviewed by defendants' medical expert (Dr. Feuer[FN2]) in his medical affirmation (see Pommells v Perez, 4 NY3d 566, 577, n 5 [2005]; Navedo v Jaime, 32 AD3d 788, 822 NYS2d 43, [1st Dept 2004]; Brown v Achy, 9 AD3d 30, 776 NYS2d 56 [1st Dept 2004]; Gonzalez v Vasquez, 301 AD2d 438, 754 NYS2d 7 [1st Dept 2003]; Ayzen v Melendez, 299 AD2d 381, 749 NYS2d 443 [1st Dept 2002]). Angel's physician, Dr. Boppana, stated in his medical affirmation that he reviewed the [*6]plaintiff's MRI films[FN3] and incorporated their results in his conclusions.
Dr. Waxman's MRI reports indicated that plaintiff suffered a broad based disc herniation at L4-L5 with left foraminal stenosis and a disc bulge at L3-L4 with anterior thecal sac effacement, and multilevel disc bulging from C3-C4 through C6-C7 with ventral epidural space effacement.
...
Here, though the evidence presented by Angel does not rebut defendants' proof that he did not suffer serious injury under the Insurance Law § 5102 (d) categorizations of a permanent loss of use of a body organ, member, function, or system; a permanent consequential limitation of use of a body function or system; or the 90/180-day category, the objective criteria and their norms as presented in Dr. Boppana's medical affirmation has raised material issues of fact as to whether or not Angel sustained injuries under the Insurance Law § 5102 (d) category of a significant limitation of use of a body function or system category (see Pommells v Perez at 577).
The defendants also moved for summary judgment on liability, and sought to lead photographs alleged to have been taken by another of the defendant bus company's employees. That attempt was not successful, despite attempts by counsel to affirm the photographs:
The defendants also offer prime facie photographs allegedly taken after the accident by another bus driver employed by the defendant Amboy Bus Company who was just passing by the accident (see Notice of Motion, Exhibit I, Affirmation in Opposition, Exhibit 4). This unidentified bus driver allegedly named "Carmen" is never properly identified, deposed nor submitted an affidavit to authenticate the photographs. Moreover, the defendant Davis when asked about the photographs he replied that he never saw the photos and was unaware how were taken (id., Exhibit G, at 35-36):
The Court holds these photographs are inadmissible on this motion. We rely upon the Appellate Division, First Department's recent holding in Coleman v Maclas, 61 AD3d 569, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]. The Court affirmed that "the [trial] court properly disregarded the uncertified police reports and unauthenticated photographs as they were inadmissible hearsay (see Figueroa v Luna, 281 AD2d 204, 206, 721 NYS2d 635 [2001] )." The Court held "Further, the affirmation by plaintiff's counsel, who had no personal knowledge of the accident, was not admissible evidence... (see Johnson v Phillips, 261 AD2d 269, 270-271, 690 NYS2d 545 [1999] )." [*8]
The defendants further sought to lead a police accident report, without calling either the police officer who had authored that report, or who had witnessed the immediate aftermath of the accident and witnessed spontaneous statements or declarations against interest made by persons who witness or who were involved in the accident. That attempt by the defendants to introduce the contents of the police accident report failed:
In addition, defendants (uncertified) copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104AN (7/01)) is also inadmissible to prove liability. Uncertified police accident reports are inadmissible to indicate a parties liability because the police officer who prepared the report was not an eyewitness to the accident as it constitutes inadmissible hearsay, (see Coleman v Maclas, 61 AD3d 569, 877 NYS2d 297, 2009 NY Slip Op. 03100 [ 1st Dept. April 23, 2009]; Figueroa v Luna, 281 AD2d 204,721 NYS2d 635 [1st Dept 2001]; Ann Connors v. Duck's Cesspoool Services, Ltd., 144 AD2d 329, 533 NYS2d 942 [1st Dept 1988]; Murray v Donlan, 77 AD2d 337, 433 NYS2d 184 [1st Dept 1980]).
Moreover, the Appellate Division, First Department also recently decided Soto-Maroquin v Mellet __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept, June 4 2009], (10 days after its decision on April 23, 2009 in Coleman v Maclas, supra) that uncertified police accident reports that contain the statements made by the parties to the police officer preparing the accident report and falls into a hearsay exception under "spontaneous statements" or "declaration against interests" are also inadmissible. (cf. Soto-Maroquin v Mellet, Sup Ct, NY County, October 14, 2008, Wooten J. Index No. 108798/07 [uncertified police report contained admission from defendant], affd __AD3d__, 2009 NY Slip Op 04357, *1 [1st Dept 2009] ["consideration of uncertified police report was harmless in view of defendant's passenger's affidavit attesting to what defendants object to in the police report, namely, that defendants' vehicle struck plaintiff's vehicle in the rear"]; compare Voskin v Lemel, 52 AD3d 503, 503, 859 NYS2d 489 [2d Dept 2008] ["plaintiff's case buttressed by the certified copy of the police accident report containing the defendant's admission that he did not see the plaintiff and struck him"]; 2 McCormick on Evidence 2d §§ 271 and 272).
The defendants' motion was denied.
First Department: Manhattan Supreme Court Directed Verdict Precluding Expert Testimony Vacated Because Expert Was Sufficiently Qualified
In Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC (2009 NY Slip Op 04950) the First Department vacated a New York County Supreme Court directed verdict on the issue of the preclusion of expert testimony and confirmed the standards relevant when assessing the qualification of an expert witness and the circumstances in which that discretion is non reviewable.
The New York County Supreme Court had entered a directed verdict for the plaintiff at trial but precluding expert testimony of the future costs of rectifying a construction defect sought by the plaintiff.
The plaintiff had filed an Expert Disclosure under CPLR 3101(1) which disclosure identified that the expert witness would lead evidence not only with respect to the construction defects. but also with respect to the costs of rectifying those defects. The plaintiff argued on appeal that the New York County Supreme Court had erred in directing that it was precluded from leading testimony as to future costs.
The First Department determined that the right of appellate review of the exercise of that discretion was preserved:
Plaintiff's argument that the court abused its discretion by precluding their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject, the court obviously was aware of the nature of the objection and, more importantly, it recognized that the issue would be subject to appellate review"
CPLR 3101(1)
1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.
CPLR 5501(a)(3)
Scope of review. (a) Generally, from final judgment. An
appeal from a final judgment brings up for review:
3. any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant, and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected.
The First Department then examined and confirmed the standards for the review of the trial court's discretion in assessing the qualification of an expert witness and the circumstances in which that discretion is non reviewable:
"While the "qualification of an expert witness is within the court's sound discretion, and its determination will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Isaacs v Incentive Sys., 52 AD2d 550 [1976]). Licensed professionals acting as experts have been found qualified to give their opinions regarding future or estimated costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with estimating costs. The computer database utilized by plaintiff's expert to prepare prebid cost estimates was based on the same methodology employed in connection with the completed remediation work—specifications and bids of hundreds of prior projects on which the expert had worked. Furthermore, "any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony," and could have been cured with a limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664, 664 [2005])."
The New York County Supreme Court had entered a directed verdict for the plaintiff at trial but precluding expert testimony of the future costs of rectifying a construction defect sought by the plaintiff.
The plaintiff had filed an Expert Disclosure under CPLR 3101(1) which disclosure identified that the expert witness would lead evidence not only with respect to the construction defects. but also with respect to the costs of rectifying those defects. The plaintiff argued on appeal that the New York County Supreme Court had erred in directing that it was precluded from leading testimony as to future costs.
The First Department determined that the right of appellate review of the exercise of that discretion was preserved:
Plaintiff's argument that the court abused its discretion by precluding their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject, the court obviously was aware of the nature of the objection and, more importantly, it recognized that the issue would be subject to appellate review"
CPLR 3101(1)
1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. In an action for medical, dental or podiatric malpractice, a party, in responding to a request, may omit the names of medical, dental or podiatric experts but shall be required to disclose all other information concerning such experts otherwise required by this paragraph.
CPLR 5501(a)(3)
Scope of review. (a) Generally, from final judgment. An
appeal from a final judgment brings up for review:
3. any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant, and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected.
The First Department then examined and confirmed the standards for the review of the trial court's discretion in assessing the qualification of an expert witness and the circumstances in which that discretion is non reviewable:
"While the "qualification of an expert witness is within the court's sound discretion, and its determination will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Isaacs v Incentive Sys., 52 AD2d 550 [1976]). Licensed professionals acting as experts have been found qualified to give their opinions regarding future or estimated costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with estimating costs. The computer database utilized by plaintiff's expert to prepare prebid cost estimates was based on the same methodology employed in connection with the completed remediation work—specifications and bids of hundreds of prior projects on which the expert had worked. Furthermore, "any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony," and could have been cured with a limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664, 664 [2005])."
Court of Appeals: Sufficient Expert Evidence When Not "Utterly Irrational" That Hard To Quantify "Larger Stroke" Arose From Malpractice
In Lang v Newman 2009 NY Slip Op 04696 the trial plaintiff experienced symptoms and was transported for treatment to hospital where she was examined by defendant doctors in succession, the latter of which ordered a CT scan, but not admit her for treatment and gave her headache medication after she declined to undertake a more invasive diagnostic procedure.
Shortly after, after ordering the plaintiff undertake an MRI, the plaintiffs primary physician (not a defendant) diagnosed her as having suffered a stroke and admitted the plaintiff to a different hospital where she was given anti-coagulant medication.
The plaintiff commenced an action against the defendant doctors and their medical groups and was successful against the second doctor (who had assumed her care on the first doctor's ending of his shift) on the grounds that she had suffered permanent injuries from the stroke, by reason that she was not admitted to hospital for further diagnosis and treatment. The plaintiff was not successful on grounds that the doctors had failed to administer an anti-coagulant drug.
The Appellate Division affirmed the trial verdict, over a 2 justice dissent.
The Court of Appeals affirmed:
"Evidence is legally insufficient to support a verdict if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Plaintiff's expert testified that if Firman had admitted plaintiff to the hospital rather than discharging her, the stroke would have been diagnosed, she would have been given an anticoagulant, and the failure to administer that medicine resulted in "a little larger stroke than she should have had if she was properly treated." Despite the fact that the expert also stated that it was "very hard to quantify" precisely how much additional damage plaintiff suffered as a result of Firman's negligence, we cannot say that the jury's finding of liability on this theory was "utterly irrational" (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence."
Shortly after, after ordering the plaintiff undertake an MRI, the plaintiffs primary physician (not a defendant) diagnosed her as having suffered a stroke and admitted the plaintiff to a different hospital where she was given anti-coagulant medication.
The plaintiff commenced an action against the defendant doctors and their medical groups and was successful against the second doctor (who had assumed her care on the first doctor's ending of his shift) on the grounds that she had suffered permanent injuries from the stroke, by reason that she was not admitted to hospital for further diagnosis and treatment. The plaintiff was not successful on grounds that the doctors had failed to administer an anti-coagulant drug.
The Appellate Division affirmed the trial verdict, over a 2 justice dissent.
The Court of Appeals affirmed:
"Evidence is legally insufficient to support a verdict if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Plaintiff's expert testified that if Firman had admitted plaintiff to the hospital rather than discharging her, the stroke would have been diagnosed, she would have been given an anticoagulant, and the failure to administer that medicine resulted in "a little larger stroke than she should have had if she was properly treated." Despite the fact that the expert also stated that it was "very hard to quantify" precisely how much additional damage plaintiff suffered as a result of Firman's negligence, we cannot say that the jury's finding of liability on this theory was "utterly irrational" (id.) or that no basis of proof existed to support the verdict. Consequently, the verdict was based on legally sufficient evidence."
Court of Appeals Affirms First Department: Expert Witness's Reliance Upon Purportedly Held "Human Factor" Industry Design Standards Not Sound
In Hotaling v The City of New York 2009 NY Slip Op 04303 the Court of Appeals affirmed the decision of the First Department in Hotaling v City of New York 2008 NY Slip Op 07951 [55 AD3d 396] and held that the expert witness's testimony was insufficient at law to sustain a prima facie case of negligent design, referring to Buchholz v Trump 767 Fifth Ave., LLC 2005 NY Slip Op 04613 [5 NY3d 1].
The appellant had been awarded damages at trial before a jury for an accident that occurred while he was employed by the City. The basis of the appellants claim was negligent design. The appellant walked through a double swinging door during a fire drill and while turning right to continue to a staircase to exit the building was immediately hit by the second of the swinging doors being used by another exiting person.
At trial the appellant led evidence through an expert witness, the doors were negligently designed in that they allowed for an accident of the type in question, where a person was walking immediately to the staircase, that they were not restricted from swinging too quickly, and that the narrow viewing panel in the doors were too restrictive such as to prevent a person using the door from establishing it was safe to use. In contrast to the plaintiff, who did not lead any evidence that the City had violated the Building code at the time the building had been built, the City led evidence through its expert witness that the building design fully complied with the Building Code, and that the plaintiff's expert witness's conclusions that the design of the doors violated industry standard were erroneous.
First Department held:
The absence of a violation of the New York City Building Code may not always establish, as a matter of law, the absence of negligent design. Especially if there is no Building Code provision directly applicable to a particular design feature, other types of industry-wide standards may be applicable to determine whether a party was negligent. In either event, however, in this matter there is insufficient support for plaintiffs' negligent design claim. Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place. Nor are mere nonmandatory guidelines and recommendations sufficient (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 386 [2003]). The expert must 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 (Jones v City of New York, 32 AD3d 706, 707 [2006]).
In Buchholz v Trump 767 Fifth Ave., LLC (5 NY3d 1 [2005]), the Court affirmed a grant of summary judgment dismissing the complaint of a plaintiff who had accidentally fallen through a 13th-floor window in the course of roughhousing, where the plaintiff's expert had asserted that industry standards required installation of either tempered glass or a protective barrier bar, because "[p]laintiff's expert cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion that good and accepted engineering and building safety practices" required these measures (id. at 8-9).
The essence of plaintiffs' claim was the assertion by Lustbader that the design of the doors at issue deviated from "human factors" design standards. Lustbader primarily relied upon the Human Factors Design Handbook, by Woodson and Tillman, for the industry standards he applied. However, he failed to establish that these purported standards were published, generally accepted, or even in existence in 1970. His testimony on that point was limited to his asserted "belief" that the first edition of the handbook "goes back some 30, 40 years," and that "the early versions predate 1970." However, not only did he fail to establish the existence of any such pre-1970 version, but also he did not verify that any such purported pre-1970 version contained the same standards as the later edition upon which he relied. Indeed, defendants established in their posttrial motion that the first edition of the Woodson handbook was published in 1981, rendering Lustbader's reliance on the standards set forth in the handbook inapplicable as a matter of law.
As to plaintiffs' contention that, although the handbook had not yet been published, the underlying principles were widely accepted prior to 1970, they merely cite three cases that discuss the admissibility of testimony regarding human factors standards without addressing whether the standard existed at the relevant time so as to be applicable to the facts at issue (see Wichy v City of New York, 304 AD2d 755 [2003]; Nowlin v City of New York, 182 AD2d 376 [1992], affd 81 NY2d 81 [1993]; Elmlinger v Board of Educ. of Town of Grand Is., 132 AD2d 923, 924 [1987]). While expert testimony as to human factors design standards has been ruled [*3]admissible, nevertheless, plaintiffs' expert failed to establish that the human factors design industry standards he relied upon were published or in general acceptance in the building construction industry in 1970.
Since the testimony of plaintiffs' expert failed to support plaintiffs' claim that the design of the doors in question violated accepted industry standards at the time the school was built, plaintiffs failed as a matter of law to make out a prima facie case of negligent design. The judgment must therefore be reversed and the complaint dismissed.
The appellant had been awarded damages at trial before a jury for an accident that occurred while he was employed by the City. The basis of the appellants claim was negligent design. The appellant walked through a double swinging door during a fire drill and while turning right to continue to a staircase to exit the building was immediately hit by the second of the swinging doors being used by another exiting person.
At trial the appellant led evidence through an expert witness, the doors were negligently designed in that they allowed for an accident of the type in question, where a person was walking immediately to the staircase, that they were not restricted from swinging too quickly, and that the narrow viewing panel in the doors were too restrictive such as to prevent a person using the door from establishing it was safe to use. In contrast to the plaintiff, who did not lead any evidence that the City had violated the Building code at the time the building had been built, the City led evidence through its expert witness that the building design fully complied with the Building Code, and that the plaintiff's expert witness's conclusions that the design of the doors violated industry standard were erroneous.
First Department held:
The absence of a violation of the New York City Building Code may not always establish, as a matter of law, the absence of negligent design. Especially if there is no Building Code provision directly applicable to a particular design feature, other types of industry-wide standards may be applicable to determine whether a party was negligent. In either event, however, in this matter there is insufficient support for plaintiffs' negligent design claim. Before a claimed industry standard is accepted by a court as applicable to the facts of a case, the expert must do more than merely assert a personal belief that the claimed industry-wide standard existed at the time the design was put in place. Nor are mere nonmandatory guidelines and recommendations sufficient (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384, 386 [2003]). The expert must 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 (Jones v City of New York, 32 AD3d 706, 707 [2006]).
In Buchholz v Trump 767 Fifth Ave., LLC (5 NY3d 1 [2005]), the Court affirmed a grant of summary judgment dismissing the complaint of a plaintiff who had accidentally fallen through a 13th-floor window in the course of roughhousing, where the plaintiff's expert had asserted that industry standards required installation of either tempered glass or a protective barrier bar, because "[p]laintiff's expert cited no authority, treatise, standard, building code, article or other corroborating evidence to support his assertion that good and accepted engineering and building safety practices" required these measures (id. at 8-9).
The essence of plaintiffs' claim was the assertion by Lustbader that the design of the doors at issue deviated from "human factors" design standards. Lustbader primarily relied upon the Human Factors Design Handbook, by Woodson and Tillman, for the industry standards he applied. However, he failed to establish that these purported standards were published, generally accepted, or even in existence in 1970. His testimony on that point was limited to his asserted "belief" that the first edition of the handbook "goes back some 30, 40 years," and that "the early versions predate 1970." However, not only did he fail to establish the existence of any such pre-1970 version, but also he did not verify that any such purported pre-1970 version contained the same standards as the later edition upon which he relied. Indeed, defendants established in their posttrial motion that the first edition of the Woodson handbook was published in 1981, rendering Lustbader's reliance on the standards set forth in the handbook inapplicable as a matter of law.
As to plaintiffs' contention that, although the handbook had not yet been published, the underlying principles were widely accepted prior to 1970, they merely cite three cases that discuss the admissibility of testimony regarding human factors standards without addressing whether the standard existed at the relevant time so as to be applicable to the facts at issue (see Wichy v City of New York, 304 AD2d 755 [2003]; Nowlin v City of New York, 182 AD2d 376 [1992], affd 81 NY2d 81 [1993]; Elmlinger v Board of Educ. of Town of Grand Is., 132 AD2d 923, 924 [1987]). While expert testimony as to human factors design standards has been ruled [*3]admissible, nevertheless, plaintiffs' expert failed to establish that the human factors design industry standards he relied upon were published or in general acceptance in the building construction industry in 1970.
Since the testimony of plaintiffs' expert failed to support plaintiffs' claim that the design of the doors in question violated accepted industry standards at the time the school was built, plaintiffs failed as a matter of law to make out a prima facie case of negligent design. The judgment must therefore be reversed and the complaint dismissed.
Second Department: Professional Reliability Exception Not Available Where Expert Witness Relies Upon Unobserved Or Non-Testified Third Party Report
In A-Tech Concrete Co., Inc. v Tilcon N.Y., Inc. (2009 NY Slip Op 01596) the Second Department examined the use of the professional reliability exception to the rule against hearsay in an appeal from a decision in a breach of contract proceeding in which the defendant was granted damages on counterclaim, and in which the expert witness attempted to rely on unobserved, third party expert findings.
At trial, the plaintiff sought to lead evidence in the form of an expert report, opinion evidence, and the report of a laboratory separate to that of the expert witness but on which the expert based his opinion evidence.
The expert witness sent materials to the laboratory for testing but did not oversee, attend, conduct or even observe the testing process. There was no evidence that the expert witness had personal knowledge of the testing process. Further, the expert witness did not testify about the testing procedure.
The defendant objected at trial to the admission of the laboratory report and the expert witness's opinion testimony and expert report based upon the prior report. The objection was sustained at trial and affirmed by the Second Department:
...the expert's testimony that reports such as the laboratory report are generally relied upon by professionals in his field did not sufficiently establish the reliability of the laboratory report for the purposes of the professional reliability exception (see Clevenger v Mitnick, 38 AD3d 586, 586-587; Wagman v Bradshaw, 292 AD2d at 89-90; Erosa v Rinaldi, 270 AD2d 384, 384-385). Thus, the Supreme Court properly sustained the defendant's objection to the [*2]admission of the laboratory report as well as the expert report and opinion testimony based upon the laboratory report.
At trial, the plaintiff sought to lead evidence in the form of an expert report, opinion evidence, and the report of a laboratory separate to that of the expert witness but on which the expert based his opinion evidence.
The expert witness sent materials to the laboratory for testing but did not oversee, attend, conduct or even observe the testing process. There was no evidence that the expert witness had personal knowledge of the testing process. Further, the expert witness did not testify about the testing procedure.
The defendant objected at trial to the admission of the laboratory report and the expert witness's opinion testimony and expert report based upon the prior report. The objection was sustained at trial and affirmed by the Second Department:
...the expert's testimony that reports such as the laboratory report are generally relied upon by professionals in his field did not sufficiently establish the reliability of the laboratory report for the purposes of the professional reliability exception (see Clevenger v Mitnick, 38 AD3d 586, 586-587; Wagman v Bradshaw, 292 AD2d at 89-90; Erosa v Rinaldi, 270 AD2d 384, 384-385). Thus, the Supreme Court properly sustained the defendant's objection to the [*2]admission of the laboratory report as well as the expert report and opinion testimony based upon the laboratory report.
Supreme Court, Manhattan: Expert Testimony Reliant Upon Non Mandatory Guidelines & Fresh Particulars Not Sufficient To Defeat Summary Judgment Motion
In Alpert v Gymboree Play Programs, Inc. (2008 NY Slip Op 32988(U)) the Supreme Court in Manhattan examined the proper standard of expert testimony required to support a prima facie showing in the context of a CPLR 3212 motion.
The plaintiff was an infant injured when using playground equipment in a private supervised children playground in Manhattan. The plaintiff's complaint alleged that there was a lack of proper supervision and that the playground equipment lacked proper padding. The defendant moved for summary judgment under CPLR 3212.
The plaintiff led expert testimony from an expert witness who cited the American Society for Testing Materials Standard relating to consumer standards for home playground equipment and further to the US Consumer Product Safety Commission. The expert witness gave testimony through his report, that:
"...the proximate cause of the accident suffered by [plaintiff] was the absence of required handrails on the subject equipment and the failure of Gymboree, Inc., to require approved slip-resistant footwear. Further, it is my additional considered opinion, rendered to a reasonable degree of certainty in my areas of expertise enumerated below, that had either of the two items enumerated as the aggregate proximate cause of the accident been corrected and had there been either handrails or approved sneakers in use, the accident would not have occurred and the injuries not suffered..."
The court restated the principle that once the moving party had established a prima facie showing of entitlement to summary judgment, the burden shifted to the opposing party "to produce evidentiary proof sufficient to establish the existence of material issues of fact"
In examining the expert witness's report, the court found:
First, [the expert witness's] report alleges that the proximate cause of the accident was the lack of handrails on the A-frame apparent failure of Gymboree to require children to wear slip-resistant footwear. Neither negligence was alleged by plaintiff in the bill of particulars. “A plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory for negligence for the first time in opposition to the motion.... Second, [the expert witness] bases his conclusions on rules promulgated by the American Society for Testing and Materials and the United States Consumer Product Safety Commission. Absent evidence that a particular non-mandatory guideline or recommendation promulgated by government or professional entities have been adopted into actual practice, it will not be held to place a higher standard of‘ care on a defendant...Guidelines established by the American Society for Testing and Materials and the United States Consumer Product Safety Commission are not mandatory and are not considered in determining whether a playground apparatus was negligently designed or installed.
The plaintiff was an infant injured when using playground equipment in a private supervised children playground in Manhattan. The plaintiff's complaint alleged that there was a lack of proper supervision and that the playground equipment lacked proper padding. The defendant moved for summary judgment under CPLR 3212.
The plaintiff led expert testimony from an expert witness who cited the American Society for Testing Materials Standard relating to consumer standards for home playground equipment and further to the US Consumer Product Safety Commission. The expert witness gave testimony through his report, that:
"...the proximate cause of the accident suffered by [plaintiff] was the absence of required handrails on the subject equipment and the failure of Gymboree, Inc., to require approved slip-resistant footwear. Further, it is my additional considered opinion, rendered to a reasonable degree of certainty in my areas of expertise enumerated below, that had either of the two items enumerated as the aggregate proximate cause of the accident been corrected and had there been either handrails or approved sneakers in use, the accident would not have occurred and the injuries not suffered..."
The court restated the principle that once the moving party had established a prima facie showing of entitlement to summary judgment, the burden shifted to the opposing party "to produce evidentiary proof sufficient to establish the existence of material issues of fact"
In examining the expert witness's report, the court found:
First, [the expert witness's] report alleges that the proximate cause of the accident was the lack of handrails on the A-frame apparent failure of Gymboree to require children to wear slip-resistant footwear. Neither negligence was alleged by plaintiff in the bill of particulars. “A plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory for negligence for the first time in opposition to the motion.... Second, [the expert witness] bases his conclusions on rules promulgated by the American Society for Testing and Materials and the United States Consumer Product Safety Commission. Absent evidence that a particular non-mandatory guideline or recommendation promulgated by government or professional entities have been adopted into actual practice, it will not be held to place a higher standard of‘ care on a defendant...Guidelines established by the American Society for Testing and Materials and the United States Consumer Product Safety Commission are not mandatory and are not considered in determining whether a playground apparatus was negligently designed or installed.
