BRULLO v. SCHIRO (1997)

In an action to recover damages for personal injuries, the defendants Diane M. Schiro and Joseph W. Schiro appeal from a judgment of the Supreme Court, Kings County (Yoswein, J.), entered March 12, 1996, which, upon a jury verdict, is against them and in favor of the plaintiff in the principal sum of $425,000.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for a new trial as against the defendants Diane M. Schiro and Joseph W. Schiro limited to the issue of damages, with costs to abide the event.

 The trial court erred in excluding the testimony of the appellants' accident reconstruction expert.   The expert's opinion that the plaintiff was not wearing his seatbelt at the time of the accident and that he would not have sustained facial injuries had he utilized the available restraint system was sufficiently based upon facts in the record and, therefore, was admissible (see, Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348;  Richardson, Evidence § 7-308 [Farrell 11th ed] ).   Since the exclusion of that testimony prevented the appellants from attempting to prove that the plaintiff should not recover for those injuries, a new trial on the issue of damages is required.

In light of the foregoing, it is unnecessary to address the appellants' remaining contention.

MEMORANDUM BY THE COURT.