Opinion
14215 Index No. 21300/18E Case No. 2021-00462
12-07-2021
Jose MUNOZ, Plaintiff–Appellant, v. ROCK GROUP NY CORP. et al., Defendants–Respondents.
Pollack Pollack Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellant. Roe & Associates, New York (Christine L. Fontaine of counsel), for respondents.
Pollack Pollack Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellant.
Roe & Associates, New York (Christine L. Fontaine of counsel), for respondents.
Acosta, P.J., Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (Bianka Perez, J.), entered on or about February 5, 2021, which denied plaintiff's motion to strike the answer for failure to provide proper expert disclosure pursuant to CPLR 3101(d)(1), or to preclude defendants’ biomechanical expert from testifying at trial, or to compel disclosure of all data, calculations, and reports generated and relied upon by the expert, unanimously modified on the facts, to grant the motion to the extent of compelling defendants, within 30 days of entry of this order, to provide the methodology the expert used to determine the forces of the accident and the biomechanical engineering principles he relied on in reaching his conclusion that the force generated by the accident could not have caused plaintiff's injuries, and otherwise affirmed, without costs.
The court providently exercised its discretion in denying plaintiff's motion either to strike defendants’ answer or preclude defendants’ biomechanical engineer's testimony at trial (see Louise v. Hampton Jitney, Inc., 193 A.D.3d 514, 141 N.Y.S.3d 851 [1st Dept. 2021] ; Rivera v. New York City Hous. Auth., 177 A.D.3d 499, 112 N.Y.S.3d 72 [1st Dept. 2019] ). At this stage of the proceedings, striking the answer or precluding the expert's testimony is too drastic a remedy (see Rutledge v. Petrocelli Elec. Co., Inc., 309 A.D.2d 506, 765 N.Y.S.2d 243 [1st Dept. 2003] ).
This Court has accepted the reliability of expert testimony based on biomechanical engineering, and defendants’ expert's qualifications to opine on that subject are not challenged (see Cabrera v. Port Auth. of N.Y. & N.J., 185 A.D.3d 491, 492, 128 N.Y.S.3d 1 [1st Dept. 2020] ). However, the lower court improvidently exercised its discretion in denying plaintiff's motion to compel as defendants provided no description of the methodology their expert used to determine the force of the accident and the biomechanical engineering principle he relied upon in reaching his conclusion that the force generated by the accident could not have caused plaintiff's injuries (see Dovberg v. Laubach, 154 A.D.3d 810, 63 N.Y.S.3d 417 [2d Dept. 2017] ; Carter v. Isabella Geriatric Ctr., Inc., 71 A.D.3d 443, 896 N.Y.S.2d 332 [1st Dept. 2010] ).