Opinion
05-18-2016
Kirk WHITE, respondent, et al., plaintiffs, v. Victor LUNA, et al., appellants, et al., defendant.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg ], of counsel), for appellants. Sacco & Fillas, LLP, Astoria, NY (Lamont K. Rodgers of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C. (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty and Seth M. Weinberg ], of counsel), for appellants.
Sacco & Fillas, LLP, Astoria, NY (Lamont K. Rodgers of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Victor Luna and Ramiro Luna appeal from a judgment of the Supreme Court, Kings County (Baily–Schiffman, J.), dated August 7, 2014, which, upon a jury verdict on the issue of damages awarding the plaintiff Kirk White the principal sum of $400,000, is in favor of the plaintiff Kirk White and against them in the principal sum of $400,000.
ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages only.
During the damages phase of this bifurcated trial, the Supreme Court precluded the appellants' biomechanical engineer from testifying. The determination of a witness's qualification to testify as an expert rests in the discretion of the trial court and will not be disturbed in the absence of a serious mistake, an error of law, or an improvident exercise of discretion (see Werner v. Sun Oil Co., 65 N.Y.2d 839, 840, 493 N.Y.S.2d 125, 482 N.E.2d 921 ; Steinbuch v. Stern, 2 A.D.3d 709, 710, 770 N.Y.S.2d 106 ). Here, the Supreme Court erred in denying the appellants the opportunity to lay a foundation for the proposed expert testimony of their biomechanical engineer (see Werner v. Sun Oil Co., 65 N.Y.2d 839, 493 N.Y.S.2d 125, 482 N.E.2d 921 ; Wichy v. City of New York, 304 A.D.2d 755, 756, 758 N.Y.S.2d 385 ). Accordingly, a new trial on the issue of damages is warranted.
MASTRO, J.P., CHAMBERS, DICKERSON and CONNOLLY, JJ., concur.