JOZWIK v. Checker Management Corporation, Defendant. (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered May 30, 2023, which granted defendants’ motion in limine to preclude testimony from plaintiff's medical expert, unanimously affirmed, without costs.

The evidentiary ruling challenged by plaintiff, which led to dismissal of the action based on plaintiff's inability to meet the serious injury threshold (Insurance Law § 5102), was the “functional equivalent” of a ruling on a summary judgment motion and thus is “directly appealable before any trial order or judgment” (Shyer v. Shyer, 205 A.D.3d 565, 166 N.Y.S.3d 528 [1st Dept. 2022];  see Knafo v. Mount Sinai Hosp., 184 A.D.3d 478, 478–479, 124 N.Y.S.3d 188 [1st Dept. 2020]).

The trial court providently exercised its discretion in granting defendants’ motion to preclude plaintiff's expert medical witness from testifying at trial (see Dufel v. Green, 84 N.Y.2d 795, 797–798, 622 N.Y.S.2d 900, 647 N.E.2d 105 [1995]).  The expert examined plaintiff one time, 12 years after the motor vehicle accident that allegedly caused her injuries, and his proposed testimony relied on medical records, including some records translated from Polish, that plaintiff did not present at trial in admissible form.  Absent evidence as to the reliability of the out-of-court medical records on which the expert's opinion was largely based, the trial court providently exercised its discretion in granting defendants’ motion (see Astrel v. Yarborough, 31 A.D.3d 356, 817 N.Y.S.2d 642 [2d Dept. 2006];  see also Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 480 N.Y.S.2d 195, 469 N.E.2d 516 [1984]).

Without the medical expert testimony or medical records, plaintiff could not establish the extent of her injuries or a causal connection between those injuries and the accident (see Hambsch, 63 N.Y.2d at 726, 480 N.Y.S.2d 195, 469 N.E.2d 516).  Plaintiff's arguments are unavailing and largely outside the scope of this appeal (see e.g. Everett v. Timmins, 187 A.D.3d 437, 438, 133 N.Y.S.3d 1 [1st Dept. 2020]).  In any event, they do not warrant a different result.