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Munoz v. Rock Grp. NY Corp.

Supreme Court of New York
Dec 7, 2021
2021 N.Y. Slip Op. 6827 (N.Y. Sup. Ct. 2021)

Opinion

Appeal No. 14215 Index No. 21300/18ECase No. 2021-00462

12-07-2021

Jose Munoz, Plaintiff-Appellant, v. Rock Group NY Corp. et al., Defendants-Respondents. Appeal No. 14215 No. 2021-00462

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.

Before: 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 [1st Dept 2021]; Rivera v New York City Hous. Auth., 177 A.D.3d 499 [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 [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 [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 [2d Dept 2017]; Carter v Isabella Geriatric Ctr., Inc., 71 A.D.3d 443 [1st Dept 2010]).


Summaries of

Munoz v. Rock Grp. NY Corp.

Supreme Court of New York
Dec 7, 2021
2021 N.Y. Slip Op. 6827 (N.Y. Sup. Ct. 2021)
Case details for

Munoz v. Rock Grp. NY Corp.

Case Details

Full title:Jose Munoz, Plaintiff-Appellant, v. Rock Group NY Corp. et al.…

Court:Supreme Court of New York

Date published: Dec 7, 2021

Citations

2021 N.Y. Slip Op. 6827 (N.Y. Sup. Ct. 2021)