White v. Luna , 30 N.Y.S.3d 575 ( 2016 )

White v Luna (2016 NY Slip Op 03874)

White v Luna

2016 NY Slip Op 03874

Decided on May 18, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 18, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
THOMAS A. DICKERSON
FRANCESCA E. CONNOLLY, JJ.

2014-10268
(Index No. 20162/10)

[*1]Kirk White, respondent, et al., plaintiffs,

v

Victor Luna, et al., appellants, et al., defendant.

Baker, McEvoy, Morrissey & Moskovits, P.C. (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg], of counsel), for appellants.

Sacco & Fillas, LLP, Astoria, NY (Lamont K. Rodgers of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Victor Luna and Ramiro Luna appeal from a judgment of the Supreme Court, Kings County (Baily-Schiffman, J.), dated August 7, 2014, which, upon a jury verdict on the issue of damages awarding the plaintiff Kirk White the principal sum of $400,000, is in favor of the plaintiff Kirk White and against them in the principal sum of $400,000.

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages only.

During the damages phase of this bifurcated trial, the Supreme Court precluded the appellants' biomechanical engineer from testifying. The determination of a witness's qualification to testify as an expert rests in the discretion of the trial court and will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see Werner v Sun Oil Co., 65 NY2d 839, 840; Steinbuch v Stern, 2 AD3d 709, 710). Here, the Supreme Court erred in denying the appellants the opportunity to lay a foundation for the proposed expert testimony of their biomechanical engineer (see Werner v Sun Oil Co., 65 NY2d 839; Wichy v City of New York, 304 AD2d 755, 756). Accordingly, a new trial on the issue of damages is warranted.

MASTRO, J.P., CHAMBERS, DICKERSON and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court