Bowe by Bowe v. City of New York
Decision Date | 02 March 1987 |
Citation | 512 N.Y.S.2d 422,128 A.D.2d 495 |
Parties | Jamel BOWE, an Infant, BY His Mother and Natural Guardian, Willie BOWE et al., Appellants, v. The CITY OF NEW YORK, Respondent, et al., Defendant. |
Court | New York Supreme Court — Appellate Division |
Schlossman & DeProspo, Brooklyn (Thomas Torto, of counsel), for appellants.
Peter L. Zimroth, Corp. Counsel, New York City (Fay Leoussis and Barry P. Schwartz, of counsel), for respondent.
Before MOLLEN, P.J., and WEINSTEIN, EIBER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated May 8, 1985, which affirmed a judgment of the Civil Court of the City of New York, Kings County (Tavormina, J.), dated April 3, 1984, which is in favor of the respondent and against them upon a jury verdict.
ORDERED that the order is affirmed, without costs or disbursements.
We agree with the holding of the Appellate Term that the plaintiffs' objections to the admission of expert testimony concerning the infant plaintiff's coordination problems, as well as objections to the trial court's failure to instruct the jury as to the infant plaintiff's non sui juris status, were moot, as these issues relate solely to the questions of proximate cause and comparative negligence, which question the jury necessarily did not reach in view of its finding that the city had not been negligent in maintainence of the sidewalk and water cap upon which the infant plaintiff fell (see, Niedelman v. Jacoby, 127 A.D.2d 640, 511 N.Y.S.2d 870 [2d Dept., 1987]).
We would note that, in any event, the Civil Court properly exercised its discretion in ruling that a special education teacher and "evaluator" was qualified to testify as an expert with regard to the infant plaintiff's coordination problems. A determination as to a witness' qualifications to testify as an expert rests in the discretion of the trial court, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an abuse of discretion (see, Werner v. Sun Oil Co., 65 N.Y.2d 839, 493 N.Y.S.2d 125, 482 N.E.2d 921; Meiselman v. Crown Heights Hosp., 285 N.Y. 389, 34 N.E.2d 367; Karasik v. Bird, 98 A.D.2d 359, 470 N.Y.S.2d 605). In the instant case the expert was well qualified by reason of his skill, training, education, knowledge and experience to...
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