Preview
FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020
NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/15/2023
EX‰IBlT J
FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020
NYSCEF DOC. NO. 47 08/26/2020 55
RECEIVED
INDEX NYSCEF:
NO. 03/15/2023
60422 6/2019
FILED: NASSAU COUNTY CLERK 10: AN|
NYSCEF DOC. NO. 69 . .e RECEIVED NYSCEF: 0 8 / 2 6 / 2 02 0
2020 NY Slip Op o3771 ORDERED that the appeal from the
order dated July 22, 2016, is dismissed as
Cecilia Guerra, appellant, academic in light of our determination of the
v. appeal from the order dated May 4, 2017; and
Paul A. Ditta, respondent. it is further,
2016-o9503 ORDERED that the order dated May 4,
2017-o6397 2017, is reversed insofar as appealed from, on
the law, that branch of the plaintiff's motion
SUPREME COURT OF THE STATE OF which was pursuant to CPLR 4404(a) to set
NEWYORK Appellate Division, Second aside the jury verdict on the issue of damages
Judicial Departinent in the interest of justice and for a new trial on
the issue of damages is granted, and the
Decided on July 8, 2020 matter is remitted to the Supreme Court,
Kings County, for a new trial on the issue of
LEONARD B. AUSTIN, J.P. and it is further,
damages;
SHERI S. ROMAN ORDERED that one bill of costs is
awarded to the plaintiff.
JOSEPH J. MALTESE
The parties were involved in a rear-end
HECTOR D. LASALLE, JJ.
motor vehicle collision on May 25, 2010. The
accident occurred when the traffic light at
(Index No. 502186/12)
which the parties were stopped turned green.
The defendant took his foot off his brake, and
Ogen & Sedaghati, P.C., New York, NY
his vehicle struck the rear of the plaintiff's
(Eitan Alexander Ogen of counsel), for
vehicle. The plaintiff alleged that she
appellant.
sustained significant injuries to her back as a
result of the accident. Summary judgment on
McCabe, Collins, McGeough, Fowler,
the issue of liability was granted to the
Levine & Nogan LLP, Carle Place, NY (Patrick
plaintiff and a trial was held on the issue of
M. Murphy of counsel), for respondent.
damages.
DECISION & ORDER
Prior to trial, the plaintiff moved to
preclude the defendant's proffered
In an action to recover damages for
appeals from biomechanical
personal injuries, the plaintiff
(1) an order of the Supreme Court, Kings
Page 2
County (Wavny Toussaint, J.), dated July 22,
2016, and (2) an order of the same court
expert, Kevin K. Toosi. from testifying or, in
dated May 4, 2017. The order dated July 22,
the alternative, for a hearing pursuant to Frpe
2016, denied the plaintiffs motion for an
v United States (293 F 1o13 [DC Cir]). The
evidentiary hearing on the issue of alleged
motion was denied. Toosi testified at trial that
juror misconduct. The order dated May 4,
the plaintiffs injuries could not have been
insofar as appealed from, denied that
2017, The returned a
caused by the accident. jury
branch of the plaintiff's motion which was
verdict in the defendant's favor, finding that
pursuant to CPLR 4404(a) to set aside a jury
the plaintiff did not sustain a serious injury
verdict on the issue of damages in the interest
within the meaning of Insurance Law §
of justice and for a new trial on the issue of
5102(d). The plaintiff moved, inter alia,
damages.
-1-
last
FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020
NYSCEF DOC. NO. 47 RECEIVED
INDEX NYSCEF:
NO. 03/15/2023
60422
FILED: NASSAU COUNTY CLERK 08/26/2020 10:55 AM)
6/2019
NYSCEF DOC. NO. 69 o RECEIVED NYSCEF: 08/2 6/2020
pursuant to CPLR 4404(a) to set aside the (People v Brooks, 31 NY3d 939, 941). The
jury verdict on the issue of damages in the court properly relied upon a decision of this
interest of justice and for a new trial on the Court and a decision of the Appellate Term,
issue of damages. The plaintiff also moved for First Department, in determining that
an evidentiary hearing to determine whether biomechanical engineering is a scientific
one of the jurors committed misconduct and theory accepted in the field (see Plate v
improperly influenced the verdict. In an order Palisade Film Delivery Corp., 39 AD3d 835;
dated July 22, 2016, the Supreme Court Gonzalez v Palen, 48 Misc 3d 135[A], 2015
denied the motion for an evidentiary hearing NY Slip Op 51101[U] [App Term, ist Dept];
on the issue of alleged juror misconduct. In see alsoShah v Rahman, 167 AD3d at 673).
an order dated May 4, 2017, the court denied
that branch of the first motion which was to However, we disagree with the Supreme
set aside the jury verdict in the interest of Court's determination that there was a proper
justice and for a new trial on the issue of foundation for the admission of Toosi's
damages. The plaintiff appeals from both opinions and testimony. Separate and distinct
"
orders. from the Frye inquiry is the admissibility
question applied to all evidence-whether
"
A motion pursuant to CPLR 4404(a) to there is a proper foundation-to determine
set aside a verdict and for a new trial in the whether the accepted methods were
case'"
interest of justice encompasses errors in the appropriately employed in a particular
trial court's rulings on the admissibility of (People u Brooks, 31 NY3d at 941, quoting
evidence, mistakes in the charge, misconduct, Parker v Mobil Oil Corp., 7 NY3d 434, 447).
surprise'"
newly discovered evidence, and "The question is whether the expert's opinion
(Simon v Granite Bldg. 2, LLC, 170 AD3d sufficiently relates to existing data or is
1227, 1231, quoting Russo v Levat, 143 AD3d connected to existing data only by the ipse
expert"
966, 968). "In considering such a motion, dixit of the (People v Brooks, 31 NY3d
[t]he Trial Judge must decide whether at 941 [emphasis and internal quotation
substantial justice has been done, whether it marks omitted]). Here, the defendant failed
is likely that the verdict has been affected and to establish that Toosi's opinions related to
must look to his [or her] own common sense, existing data and were the result of properly
experience and sense of fairness rather than applied accepted methodology (see Pascocello
decision'"
to precedents in arriving at a v Jibone, 161 AD3d 516; Douberg v Laubach,
(Daniele v Pain Mgt. Ctr. of Long Is., 168 154 AD3d 810, 813; ef. Clemente u
AD3d 672, 676, quoting Micallef v Miehle Co., Blumenberg, 183 Misc 2d 923 [Sup Ct,
Div. of Miehle-Goss Dexter, 39 NY2d 376, Richmond County]). Thus, Toosi's testimony
381). should have been precluded. Accordingly, we
reverse the order dated May 4, 2017, insofar
We agree with the defendant that setting as appealed from, grant that branch of the
aside the verdict was not warranted in the plaintiffs motion which was pursuant to
interest of justice due to the Supreme Court's CPLR 4404(a) to set aside the jury verdict on
determination not to hold a Frye hearing. "A the issue of damages in the interest of justice
court need not hold a Frye hearing where it and for a new trial on the issue of damages,
can rely upon previous rulings in other court and remit the matter to the Supreme Court,
proceedings as an aid in
determining the Kings County, for a new trial on the issue of
testimony"
admissibility of the proffered damages.
(People v LeGrand, 8 NY3d 449, 458; see
Shah v Rahman, 167 AD3d 671, 673). "Absent In light of our determination, the
a novel or experimental scientific theory, a plaintiff's remaining contentions on the
unwarranted"
Frye hearing is generally appeal from the order dated May 4, 2017,
-2-
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FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020
NYSCEF DOC. NO. 47 RECEIVED
INDEX
NYSCEF:
NO.
03/15/2023
604226/2019
FILED : NASSAU COUNTY CLERK 08/26/2020 10:55 AM)
NYSCEF DOC. NO . 69 Guerra v Ditta. 2020 NY SlipOu 3771 (N.Y Aoo Div 2020) RECEIVED NYSCEF : 08/ 2 6/ 202 0
need not be reached. Furthermore, in light of
our determination, the appeal from the order
dated July 22, 2016, has been rendered
academic.
AUSTIN, J.P., ROMAN, MALTESE and
LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
-3-
Last .
Preview
FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/15/2023 EX‰IBlT J FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020 NYSCEF DOC. NO. 47 08/26/2020 55 RECEIVED INDEX NYSCEF: NO. 03/15/2023 60422 6/2019 FILED: NASSAU COUNTY CLERK 10: AN| NYSCEF DOC. NO. 69 . .e RECEIVED NYSCEF: 0 8 / 2 6 / 2 02 0 2020 NY Slip Op o3771 ORDERED that the appeal from the order dated July 22, 2016, is dismissed as Cecilia Guerra, appellant, academic in light of our determination of the v. appeal from the order dated May 4, 2017; and Paul A. Ditta, respondent. it is further, 2016-o9503 ORDERED that the order dated May 4, 2017-o6397 2017, is reversed insofar as appealed from, on the law, that branch of the plaintiff's motion SUPREME COURT OF THE STATE OF which was pursuant to CPLR 4404(a) to set NEWYORK Appellate Division, Second aside the jury verdict on the issue of damages Judicial Departinent in the interest of justice and for a new trial on the issue of damages is granted, and the Decided on July 8, 2020 matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of LEONARD B. AUSTIN, J.P. and it is further, damages; SHERI S. ROMAN ORDERED that one bill of costs is awarded to the plaintiff. JOSEPH J. MALTESE The parties were involved in a rear-end HECTOR D. LASALLE, JJ. motor vehicle collision on May 25, 2010. The accident occurred when the traffic light at (Index No. 502186/12) which the parties were stopped turned green. The defendant took his foot off his brake, and Ogen & Sedaghati, P.C., New York, NY his vehicle struck the rear of the plaintiff's (Eitan Alexander Ogen of counsel), for vehicle. The plaintiff alleged that she appellant. sustained significant injuries to her back as a result of the accident. Summary judgment on McCabe, Collins, McGeough, Fowler, the issue of liability was granted to the Levine & Nogan LLP, Carle Place, NY (Patrick plaintiff and a trial was held on the issue of M. Murphy of counsel), for respondent. damages. DECISION & ORDER Prior to trial, the plaintiff moved to preclude the defendant's proffered In an action to recover damages for appeals from biomechanical personal injuries, the plaintiff (1) an order of the Supreme Court, Kings Page 2 County (Wavny Toussaint, J.), dated July 22, 2016, and (2) an order of the same court expert, Kevin K. Toosi. from testifying or, in dated May 4, 2017. The order dated July 22, the alternative, for a hearing pursuant to Frpe 2016, denied the plaintiffs motion for an v United States (293 F 1o13 [DC Cir]). The evidentiary hearing on the issue of alleged motion was denied. Toosi testified at trial that juror misconduct. The order dated May 4, the plaintiffs injuries could not have been insofar as appealed from, denied that 2017, The returned a caused by the accident. jury branch of the plaintiff's motion which was verdict in the defendant's favor, finding that pursuant to CPLR 4404(a) to set aside a jury the plaintiff did not sustain a serious injury verdict on the issue of damages in the interest within the meaning of Insurance Law § of justice and for a new trial on the issue of 5102(d). The plaintiff moved, inter alia, damages. -1- last FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020 NYSCEF DOC. NO. 47 RECEIVED INDEX NYSCEF: NO. 03/15/2023 60422 FILED: NASSAU COUNTY CLERK 08/26/2020 10:55 AM) 6/2019 NYSCEF DOC. NO. 69 o RECEIVED NYSCEF: 08/2 6/2020 pursuant to CPLR 4404(a) to set aside the (People v Brooks, 31 NY3d 939, 941). The jury verdict on the issue of damages in the court properly relied upon a decision of this interest of justice and for a new trial on the Court and a decision of the Appellate Term, issue of damages. The plaintiff also moved for First Department, in determining that an evidentiary hearing to determine whether biomechanical engineering is a scientific one of the jurors committed misconduct and theory accepted in the field (see Plate v improperly influenced the verdict. In an order Palisade Film Delivery Corp., 39 AD3d 835; dated July 22, 2016, the Supreme Court Gonzalez v Palen, 48 Misc 3d 135[A], 2015 denied the motion for an evidentiary hearing NY Slip Op 51101[U] [App Term, ist Dept]; on the issue of alleged juror misconduct. In see alsoShah v Rahman, 167 AD3d at 673). an order dated May 4, 2017, the court denied that branch of the first motion which was to However, we disagree with the Supreme set aside the jury verdict in the interest of Court's determination that there was a proper justice and for a new trial on the issue of foundation for the admission of Toosi's damages. The plaintiff appeals from both opinions and testimony. Separate and distinct " orders. from the Frye inquiry is the admissibility question applied to all evidence-whether " A motion pursuant to CPLR 4404(a) to there is a proper foundation-to determine set aside a verdict and for a new trial in the whether the accepted methods were case'" interest of justice encompasses errors in the appropriately employed in a particular trial court's rulings on the admissibility of (People u Brooks, 31 NY3d at 941, quoting evidence, mistakes in the charge, misconduct, Parker v Mobil Oil Corp., 7 NY3d 434, 447). surprise'" newly discovered evidence, and "The question is whether the expert's opinion (Simon v Granite Bldg. 2, LLC, 170 AD3d sufficiently relates to existing data or is 1227, 1231, quoting Russo v Levat, 143 AD3d connected to existing data only by the ipse expert" 966, 968). "In considering such a motion, dixit of the (People v Brooks, 31 NY3d [t]he Trial Judge must decide whether at 941 [emphasis and internal quotation substantial justice has been done, whether it marks omitted]). Here, the defendant failed is likely that the verdict has been affected and to establish that Toosi's opinions related to must look to his [or her] own common sense, existing data and were the result of properly experience and sense of fairness rather than applied accepted methodology (see Pascocello decision'" to precedents in arriving at a v Jibone, 161 AD3d 516; Douberg v Laubach, (Daniele v Pain Mgt. Ctr. of Long Is., 168 154 AD3d 810, 813; ef. Clemente u AD3d 672, 676, quoting Micallef v Miehle Co., Blumenberg, 183 Misc 2d 923 [Sup Ct, Div. of Miehle-Goss Dexter, 39 NY2d 376, Richmond County]). Thus, Toosi's testimony 381). should have been precluded. Accordingly, we reverse the order dated May 4, 2017, insofar We agree with the defendant that setting as appealed from, grant that branch of the aside the verdict was not warranted in the plaintiffs motion which was pursuant to interest of justice due to the Supreme Court's CPLR 4404(a) to set aside the jury verdict on determination not to hold a Frye hearing. "A the issue of damages in the interest of justice court need not hold a Frye hearing where it and for a new trial on the issue of damages, can rely upon previous rulings in other court and remit the matter to the Supreme Court, proceedings as an aid in determining the Kings County, for a new trial on the issue of testimony" admissibility of the proffered damages. (People v LeGrand, 8 NY3d 449, 458; see Shah v Rahman, 167 AD3d 671, 673). "Absent In light of our determination, the a novel or experimental scientific theory, a plaintiff's remaining contentions on the unwarranted" Frye hearing is generally appeal from the order dated May 4, 2017, -2- leSt FILED: QUEENS COUNTY CLERK 03/15/2023 04:26 PM INDEX NO. 702198/2020 NYSCEF DOC. NO. 47 RECEIVED INDEX NYSCEF: NO. 03/15/2023 604226/2019 FILED : NASSAU COUNTY CLERK 08/26/2020 10:55 AM) NYSCEF DOC. NO . 69 Guerra v Ditta. 2020 NY SlipOu 3771 (N.Y Aoo Div 2020) RECEIVED NYSCEF : 08/ 2 6/ 202 0 need not be reached. Furthermore, in light of our determination, the appeal from the order dated July 22, 2016, has been rendered academic. AUSTIN, J.P., ROMAN, MALTESE and LASALLE, JJ., concur. ENTER: Aprilanne Agostino Clerk of the Court -3- Last .