RUIZ v. LOSITO (2024)

Supreme Court, Appellate Division, First Department, New York.

Belkys RUIZ, Plaintiff–Respondent, v. Rebecca LOSITO et al., Defendants–Appellants.

2277 & , M-1858

Decided: April 30, 2024

Oing, J.P., González, Kennedy, Higgitt, O'Neill Levy, JJ.

DeSena & Sweeney, LLP, Bohemia (Ronni Robbins Kravatz of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, New York County (Adam Silvera, J.), entered on or about June 2, 2023, which granted plaintiff's motion to preclude the testimony of defendants' expert, unanimously affirmed, without costs.

In this action for injuries plaintiff sustained in a motor vehicle accident, Supreme Court properly precluded defendants' biomechanical engineering expert, Kevin Toosi, MD, PhD, from offering an opinion based on photographs for which no proper foundation had been established (see Pascocello v. Jibone 161 AD3d 516 [1st Dept 2018]). The record is devoid of any testimony as to who took the photographs, where they were taken, or when. Moreover, defendants failed to establish that Dr. Toosi's opinion related to data specific to the subject accident and was the result of properly applied methodology (see Guerra v. Ditta, 185 AD3d 667, 668–669 [2d Dept 2020]). Accordingly, the expert's opinion is without probative value (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]).

We have considered defendants' remaining contentions and find them unavailing.

Motion for a stay of trial, denied.

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