Expert must assist and be qualified

Green v Silver, 2010 NY Slip Op 09887 (App. Div., 2nd 2010)

The Supreme Court providently exercised its discretion in precluding the defendant's expert from testifying at the hearing, since the matter about which he would have testified would not have assisted the court in making its determination (see generally Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140).

Riccio v NHT Owners, LLC, 2010 NY Slip Op 09492 (App. Div., 2nd 2010)

"It is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an improvident exercise of discretion" (de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517-518; see Werner v Sun Oil Co., 65 NY2d 839; Meiselman v Crown Hgts. Hosp., 285 NY 389, 398; Steinbuch v Stern, 2 AD3d 709, 710; Pignataro v Galarzia, 303 AD2d 667; McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572). "An expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge, or experience to render a reliable opinion" (de Hernandez v Lutheran Med. Ctr., 46 AD3d at 518; see Matott v Ward, 48 NY2d 455, 459;Pignataro v Galarzia, 303 AD2d at 668; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). "The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject" (Miele v American Tobacco Co., 2 AD3d 799, 802; see Caprara v Chrysler Corp., 52 NY2d 114, 121;McLamb v Metropolitan Suburban Bus Auth., 139 AD2d at 573).

Here, the plaintiff's expert demonstrated that she possessed the requisite skill, training, education, knowledge, and experience to render a reliable opinion as to whether the ladder provided to the plaintiff was appropriate for the repair he was performing (see Caprara v Chrysler Corp., 52 NY2d at 121; Brown v Concord Nurseries, 53 AD3d 1067, 1068; Miele v American Tobacco Co., 2 AD3d at 802). The defendants' objections to the expert's qualifications should not have precluded the admission of her testimony, but rather, went to the weight to be accorded to it by a jury (see Ochoa v Jacobson Div. of Textron, Inc., 16 AD3d 393Miele v American Tobacco Co., 2 AD3d at 802;McLamb v Metropolitan Suburban Bus Auth., 139 AD2d at 573). Accordingly, the Supreme Court improvidently exercised its discretion in, in effect, granting the defendants' application to preclude the testimony of the plaintiff's expert on the ground that she was not qualified to testify. Under the circumstances of this case, a new trial is warranted. 

Leffler v Feld, 2010 NY Slip Op 09073 (App. Div., 1st 2010)

The court properly refused to permit plaintiff to call a previously undisclosed coworker as a rebuttal witness, as the witness could have been called on plaintiff's direct case (cf. Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]; see Hutchinson v Shaheen, 55 AD2d 833, 834 [1976]). Moreover, since the rebuttal witness would not have testified to what plaintiff told defendant about her symptoms, no substantial right was prejudiced by the preclusion of the witness's testimony (see Frias v Fanning, 119 AD2d 796, 797 [1986]).

Finally, the testimony of plaintiff's handwriting expert was properly precluded because it "was of questionable probative value and likely to involve distracting collateral issues" (Heraud v Weissman, 276 AD2d 376, 377 [2000], lv denied, 96 NY2d 705 [2001]). The pre-deliberations substitution of an alternate juror for a juror who was late and could not be contacted was also a proper exercise of discretion (see People v Jeanty, 94 NY2d 507, 517 [2000]; People v Ballard, 51 AD3d 1034, 1035-1036 [2008], lv denied 11 NY3d 734 [2008]).


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