Dulin v. Maher

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MILLER
• Citation: Dulin v. Maher, 607 N.Y.S.2d 67, 200 A.D.2d 707 (N.Y. App. Div. 1994)
• Decision Date: 31 January 1994
• Parties: Martin DULIN, et al., Appellants, v. Patricia MAHER, Respondent.

Page 67

607 N.Y.S.2d 67

200 A.D.2d 707

Martin DULIN, et al., Appellants, v. Patricia MAHER, Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 31, 1994.

Denise M. Dunleavy, New York City (Edward P. Dunphy, of counsel), for appellants.

Neil L. Kanzer, Garden City (Steven T. Farmer, of counsel), for respondent.

Before MILLER, J.P., and O'BRIEN, RITTER and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Graci, J.), entered June 17, 1991 which, upon a jury verdict, is in favor of the defendant and against the plaintiffs dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

We find that the court did not err in ordering a bifurcated trial, as the plaintiffs failed to establish that the nature of the injuries suffered by the infant plaintiff was relevant to the issue of liability (see, Amato v. Hudson Country Montessori School, 185 A.D.2d 803, 586 N.Y.S.2d 635; Parmar v. Skinner, 154 A.D.2d 444, 546 N.Y.S.2d 16). Specifically, the plaintiffs failed to show that they could produce medical proof to support the infant plaintiff's claim that he suffered from amnesia as a result of the accident (see, Parmar v. Skinner, supra ). Moreover, in view of the absence of expert testimony to support the claim of amnesia, the court did not err in refusing to charge the jury pursuant to Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744, that the plaintiffs had a lesser burden of persuasion (see, Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 334-335, 502 N.Y.S.2d 696, 493 N.E.2d 920; see also, Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99, 269 N.E.2d 812).

The court did not err in precluding the plaintiffs' accident reconstruction expert from testifying. Generally, the question of whether expert testimony is admissible is addressed to the sound discretion of the trial court (see, Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101-102, 408 N.Y.S.2d 10, 379 N.E.2d 1140). Here, the plaintiffs' expert testified that he did not inspect the intersection where the accident occurred until almost three years after the accident and that he was not familiar through other sources with the condition of the intersection at the time of the accident. Consequently, the plaintiffs failed to establish a proper foundation for his testimony (see, Cassano v. Hagstrom, 5 N.Y.2d 643, 187 N.Y.S.2d 1, ...