CPLR § 3101(d)
Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)
While the "qualification of an expert witness is within the court's
sound discretion, and its determination will not be disturbed in the
absence of serious mistake, an error of law or abuse of discretion" (People v Jones, 171 AD2d 609, 610 [1991], lv denied 77 NY2d 996 [1991]), this expert should not have been precluded from testifying as to future cost estimates (see generally Issacs v Incentive Sys.,
52 AD2d 550 [1976]). Licensed professionals acting as experts have been
found qualified to give their opinions regarding future or estimated
costs (see Matter of City of Troy v Town of Pittstown, 306 AD2d 718, 719 [2003], lv denied 1 NY3d 505 [2003]), and this witness's education, training and experience qualified him to testify as an expert in connection [*2]with
estimating costs. The computer database utilized by plaintiff's expert
to prepare pre-bid cost estimates was based on the same methodology
employed in connection with the completed remediation work —
specifications and bids of hundreds of prior projects on which the
expert had worked. Furthermore, "any alleged lack of knowledge in a
particular area of expertise goes to the weight and not the
admissibility of the testimony," and could have been cured with a
limiting instruction to the jury (see Moon Ok Kwon v Martin, 19 AD3d 664 [2005]).K & J/Gonzalez's argument that it is entitled to set off
against the $2,059,692.09 jury verdict the $1,960,000 received from the
settling codefendants is unsupported by the record (see e.g. Promenade v Schindler El. Corp., 39 AD3d 221, 222-223 [2007], lv dismissed
9 NY3d 839 [2007]). Based on the explicit language of the second
amended complaint, the verdict sheet and the settling agreements, there
is no basis for concluding that the jury allocated damages to these
defendants based on the same claims or injuries by which plaintiff had
entered into its agreements with the settling codefendants. Plaintiff's
Amended CPLR 3101(d) Expert Disclosure clearly indicated that this
expert's testimony would address construction defects caused by K &
J and the "costs to remedy" those defects.
The bold is mine.
bruteforcelawyer.com 