FRANKLIN v. Columbia University, et al., Third-Party Defendants-Respondents. (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Jackson, J.), entered June 5, 1998, which, upon granting (a) the motion of the defendant third-party plaintiff Jaros, Baum & Bolles, Inc., to preclude the testimony of the plaintiff's expert, and (b) the motion of the defendant third-party plaintiff, in which the third-party defendants Columbia University and Columbia University School of Law joined, to dismiss the action for failure to prove a prima facie case, is in favor of the defendant and against him, dismissing the complaint.

ORDERED that the judgment is affirmed, with one bill of costs.

The Supreme Court did not improvidently exercise its discretion (see, Werner v. Sun Oil Company, 65 N.Y.2d 839, 493 N.Y.S.2d 125, 482 N.E.2d 921;  see also, Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 398, 34 N.E.2d 367) in precluding the testimony of the plaintiff's proposed expert on the subject of the design, installation, and maintenance of a heating, ventilation, and air conditioning system (hereinafter HVAC) on the ground that the witness was not qualified to render an opinion as to whether the defendant had negligently designed the system which it provided to the Columbia School of Law in 1958.   The witness did not possess the requisite knowledge to render a reliable opinion, and there was an insufficient factual record upon which to base an opinion that the defendant had deviated from New York City industry standards at the time it submitted its design and installed the HVAC system (see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516;  Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348;  see also, Kazlow v. City of New York, 253 A.D.2d 411, 676 N.Y.S.2d 229;  Loewenthal v. Catskill Funland, 237 A.D.2d 262, 654 N.Y.S.2d 169;  Interstate Cigar Co. v. Dynaire Corp., 176 A.D.2d 699, 574 N.Y.S.2d 789).

MEMORANDUM BY THE COURT.