Experts & CPLR R. 2106

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentist

Todman v Yoshida, 2009 NY Slip Op 05257 (App. Div., 1st, 2009)

The court correctly precluded the testimony of plaintiff's expert
toxicologist. The foundation for the expert's opinion that plaintiff's
alleged health condition was caused by toxic chemicals contained in the
wood-stripping agents used by defendant Yoshida in an apartment in the
building owned by Brown and Cook-Brown lacked the "specific causation"
i.e., that plaintiff was exposed to levels of the toxins
sufficient to cause the condition (see Parker v Mobil Oil Corp., 7 NY3d 434,
448 [2006]). While "not required to pinpoint exposure with complete
precision," the expert failed even to offer a "scientific expression"
of plaintiff's exposure
(id. at 449).

He neither provided a measurement of plaintiff's exposure nor
employed any of the available methods for reasonably estimating it,
such as mathematical modeling or comparing plaintiff's exposure level
to those of study subjects whose exposure levels were precisely
determined. Absent was any statement that the chemicals in question are
capable of causing injury at even the lowest exposure level.

In his affidavit submitted in opposition to defendants' motion,
the expert also failed to provide any measurement or estimate of
plaintiff's exposure to the subject toxins. While he opined, based on
the manner in which Yoshida used the
wood-stripping agents, that Yoshida's exposure to the toxins contained in those agents exceeded the limits set by OSHA,
"standards promulgated by regulatory agencies as protective measures are inadequate to demonstrate legal causation" (id.
at 450). Furthermore, he failed to state any relationship between
Yoshida's exposure and that of plaintiff, who occupied a different

Ortiz v Ash Leasing, Inc., 2009 NY Slip Op 05168 (App. Div., 1st, 2009)

Ortiz's doctor's conclusory statement in July 2008 that the knee
operation was related to the August 3, 2006 accident is contradicted by
August 30, 2006 X-rays and a September 18, 2006 MRI showing
degenerative changes (see Thompson, 15 AD3d at 99), and the
doctor's "failure even to mention, let alone explain, why he ruled out
degenerative changes as the cause of plaintiff's knee . . . injuries,
rendered his opinion that they were caused by the accident speculative"
(Valentin v Pomilla, 59 AD3d 184, 186 [2009]; see also Perez v Hilarion, 36 AD3d 536, 537 [2007]).

Board of Mgrs. of the 195 Hudson St. Condominium v 195 Hudson St. Assoc., LLC, 2009 NY Slip Op 04950 (App. Div., 1st, 2009)

Plaintiff's argument that the court abused its discretion by precluding
their expert from testifying as to future costs is preserved (see CPLR 5501[a][3]; Kalisch-Jarcho, Inc. v City of New York,
58 NY2d 377, 382 [1983]). "Given the lengthy colloquy on the subject,
the court obviously was aware of the nature of the objection and, more
importantly, it recognized that the issue would be subject to appellate
(Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 59 [2005]).

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.

Maffei v Santiago, 2009 NY Slip Op 05298 (App. Div., 2nd, 2009)

The medical reports of Dr. James McWilliam were without any
probative value in opposing the defendants' motion because they were
unaffirmed (see Grasso v Angerami, 79 NY2d 813; Niles v Lam Pakie Ho, 61 AD3d 657; Uribe-Zapata v Capallan, 54 AD3d 936; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; [*2]Pagano v Kingsbury, 182 AD2d 268).

Finally, the plaintiff's affidavit was insufficient to raise a triable issue of fact (see Thomas v Weeks, 61 AD3d 961; Luizzi-Schwenk v Singh, 58 AD3d 811; Gochnour v Quaremba, 58 AD3d 680).

The bold is mine.

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