Pember v. Carlson

• Decision Date: 15 November 2007
• Docket Number: 502436.
• Citation: Pember v. Carlson, 45 A.D.3d 1092, 845 N.Y.S.2d 566, 2007 NY Slip Op 8820 (N.Y. App. Div. 2007)
• Parties: RICHARD E. PEMBER et al., Appellants, v. WILLIAM CARLSON, JR., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 1092

845 N.Y.S.2d 566

2007 NY Slip Op 08820

RICHARD E. PEMBER et al., Appellants, v. WILLIAM CARLSON, JR., et al., Respondents.

502436.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided November 15, 2007.

Appeal from an order of the Supreme Court (Tait, J.), entered July 17, 2006 in Broome County, upon a verdict rendered in favor of defendants.

Lahtinen, J.

The primary issue in this appeal is whether Supreme Court erred in permitting defendants' expert engineer to testify at the trial. On the morning of February 7, 2003, plaintiff Richard E. Pember (hereinafter plaintiff) stopped while traveling north on Interstate 81 in Cortland County to assist Lucille Diliello, whose 1990 Dodge car was on fire at the side of the highway. A combination of fog and smoke reportedly created a condition with near zero visibility. Defendant William Carlson, Jr. (hereinafter defendant) was driving northbound in the vicinity and stated that, upon encountering the area of low visibility, he slowed down and attempted to move his 1998 Buick Regal from the travel lane to the right shoulder in order to stop. According to defendant, as he slowed, he felt scraping on the left side and front of his vehicle from a vehicle that hit him, but continued. Meanwhile, plaintiff was in front of Diliello's disabled vehicle extinguishing the fire when he was suddenly thrown a distance of approximately 20 to 30 feet causing injuries to his left shoulder and knee.

Plaintiff and his wife, derivatively, commenced this action against defendant and the vehicle's owner claiming that the vehicle operated by defendant had struck Diliello's vehicle. Defendant denied that he ever struck the Diliello vehicle. Defendants' expert, Alvin Bryski, opined that the accident could not have occurred as asserted by plaintiffs, both because of the postaccident positioning of the vehicles and the extent and location of the damage to the vehicles. Over plaintiffs' objections before and during trial, Supreme Court permitted Bryski to testify. The jury found no negligence and plaintiffs now appeal.

Plaintiffs argue that Bryski should not have been permitted to testify because he lacked the necessary expertise and, furthermore, plaintiffs' motion to strike should have been granted as the testimony was speculative and unreliable. "The admissibility and scope of [expert] testimony is addressed to the trial court's sound discretion and will not be disturbed on appeal absent an abuse of that discretion or an error of law" (Hudson v Lansingburgh Cent. School Dist., 27 AD3d 1027, 1028-1029 [2006] [citations omitted]). Bryski has a Master's degree in civil engineering from Georgia Institute of Technology and was a professor of civil engineering at a community college for over 30 years. He explained his considerable experience in crush evaluation, as well as other aspects of accident reconstruction. He further described his experience and membership in a society of engineers that studies accident reconstruction. He had been retained as an expert in over 2,000 cases and testified at approximately 300 trials. In light of this evidence, as well as the qualifications listed on his curriculum vitae, which was received into evidence...