Ruiz v. Losito ( 2024 )

Ruiz v Losito (2024 NY Slip Op 02287)

Ruiz v Losito

2024 NY Slip Op 02287

Decided on April 30, 2024

Appellate Division, First 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 and Entered: April 30, 2024
Before: Oing, J.P., González, Kennedy, Higgitt, O'Neill Levy, JJ.

Index No. 158403/19 Appeal No. 2277&M-1858 Case No. 2023-04959

[*1]Belkys Ruiz, Respondent,

v

Rebecca Losito et al., Appellants.

DeSena & Sweeney, LLP, Bohemia (Ronni Robbins Kravatz of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about June 2, 2023, which granted plaintiff's motion to preclude the testimony of defendants' expert, unanimously affirmed, without costs.

In this action for injuries plaintiff sustained in a motor vehicle accident, Supreme Court properly precluded defendants' biomechanical engineering expert, Kevin Toosi, MD, PhD, from offering an opinion based on photographs for which no proper foundation had been established (see Pascocello v Jibone 161 AD3d 516 [1st Dept 2018]). The record is devoid of any testimony as to who took the photographs, where they were taken, or when. Moreover, defendants failed to establish that Dr. Toosi's opinion related to data specific to the subject accident and was the result of properly applied methodology (see Guerra v Ditta, 185 AD3d 667, 668-669 [2d Dept 2020]). Accordingly, the expert's opinion is without probative value (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).

We have considered defendants' remaining contentions and find them unavailing.

M-1858 - Ruiz v Losito, et al.

Motion for a stay of trial, denied.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 30, 2024