Bowe by Bowe v. City of New York

Decision Date02 March 1987
Citation512 N.Y.S.2d 422,128 A.D.2d 495
PartiesJamel BOWE, an Infant, BY His Mother and Natural Guardian, Willie BOWE et al., Appellants, v. The CITY OF NEW YORK, Respondent, et al., Defendant.
CourtNew 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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3 cases
  • C.T. v. Bd. of Educ. of S. Glens Falls Cent. Sch. Dist.
    • United States
    • New York Supreme Court — Appellate Division
    • January 2, 2020
    ...admission is accordingly academic (see Daniels v. DePasquale, 37 A.D.3d 1140, 1140, 829 N.Y.S.2d 374 [2007] ; Bowe v. City of New York, 128 A.D.2d 495, 495, 512 N.Y.S.2d 422 [1987] ). In any event, defendant was free to introduce proof that R.T. breached his concurrent "duty to protect thir......
  • Theodosiou v. CLD Transp. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • February 27, 1989
    ...is moot, in light of the jury's finding of no negligence on the part of the defendant Richard Bennett (see, Bowe v. City of New York, 128 A.D.2d 495, 512 N.Y.S.2d 422; Niedelman v. Jacoby, 127 A.D.2d 640, 511 N.Y.S.2d 870). Finally, the plaintiffs' claim that the court improperly marshaled ......
  • Fleming by Fleming v. Kings Ridge Recreation Park, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • March 14, 1988
    ...and find it to be without merit ( see, DeLong v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717; Bowe v. City of New York, 128 A.D.2d 495, 512 N.Y.S.2d 422). In view of the fact that the judgment entered November 17, 1986, merely duplicates some of the provisions of the jud......
9 books & journal articles
  • Expert witnesses
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...1990). A neurosurgeon and chiropractor could testify concerning chiropractic malpractice. Physical abilities Bowe v. City of New York , 128 A.D.2d 495, 512 N.Y.S.2d 422 (2d Dept. 1987). A special education teacher was qualified to testify concerning a plaintiff’s coordination problems in an......
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    • United States
    • James Publishing Practical Law Books New York Objections
    • May 3, 2022
    ...presented testimony from two witnesses who were qualified as experts in dance choreography. Physical abilities Bowe v. Cty. of New York , 128 A.D.2d 495, 512 N.Y.S.2d 422 (2d Dept. 1987). A special education teacher was qualified to testify concerning a plaintiff ’s coordination problems in......
  • Expert witnesses
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2020 Contents
    • August 2, 2020
    ...presented testimony from two witnesses who were qualiied as experts in dance choreography. Physical abilities Bowe v. City of New York , 128 A.D.2d 495, 512 N.Y.S.2d 422 (2d Dept. 1987). A special education teacher was qualiied to testify concerning a plaintif ’s coordination problems in an......
  • Expert witnesses
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • August 2, 2019
    ...qualiied as experts in dance choreography. EXPERT WITNESSES 16-15 EXPERT WITNESSES §16:60 Physical abilities Bowe v. City of New York , 128 A.D.2d 495, 512 N.Y.S.2d 422 (2d Dept. 1987). A special education teacher was qualiied to testify concerning a plaintif ’s coordination problems in an ......
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