Opinion
January 31, 1994
Appeal from the Supreme Court, Queens County (Graci, J.).
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; Parmar v. Skinner, 154 A.D.2d 444). 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), that the plaintiffs had a lesser burden of persuasion (see, Sawyer v. Dreis Krump Mfg. Co., 67 N.Y.2d 328, 334-335; see also, Schechter v. Klanfer, 28 N.Y.2d 228).
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). 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; Tucker v Elimelech, 184 A.D.2d 636).
We further conclude that the court's charge as a whole sufficiently instructed the jury as to the law of proximate cause (see, Scandell v. Salerno, 155 A.D.2d 523). Finally, the plaintiffs' contention that the defense counsel improperly vouched for the credibility of his client during summation is not preserved for appellate review, and, in any event, we find that the comments complained of do not rise to the level of error mandating reversal (see, Kamen v. City of New York, 169 A.D.2d 705). Miller, J.P., O'Brien, Ritter and Krausman, JJ., concur.