Leidy Breton, Plaintiff, v. Avi Dishi, Defendant. (2026)

Trial in this long-running personal-injury action (already the subject of two appeals to the Appellate Division) is scheduled to begin on May 18, 2026. After the action was assigned to the undersigned to conduct the trial, the parties filed numerous motions in limine, and asked the court to decide those motions in advance of trial. This decision resolves all the pending motions. When motions address similar or overlapping issues, they have been grouped together for concision.

DISCUSSION

I. Motion Sequences 009 and 016

On motion sequence 009, defendant moves to preclude plaintiff's medical expert "from testifying regarding the history of the accident as related to him by plaintiff and about plaintiff's medical complaints." (NYSCEF No. 321 [notice of motion].) On motion sequence 016, plaintiff similarly moves to preclude defendant from "asking their examining physician experts any questions regarding the history of the accident, the veracity of the plaintiff or medical complaints made by the plaintiff to them during the defen[se] physical examination." (NYSCEF No. 319 [mem. of law].)

The court agrees with the parties that non-treating medical experts may not "state the history of an accident as related to [them] by the plaintiff or testify as to plaintiff's medical complaints." (Nissen v Rubin, 121 AD2d 320, 321 [1st Dept 1986].) Nor may the medical experts opine on plaintiff's veracity. These restrictions do not, however, prevent a non-treating medical expert from offering a "relevant medical opinion" about the nature or extent of plaintiff's injuries (if any) or plaintiff's future prognosis, if that opinion is "based on an examination of the injured party and a review of the medical records," as opposed to statements made by the injured party to the expert. (Daliendo v Johnson, 147 AD2d 312, 420 [2d Dept 1989]; accord Singh v Catamount Dev. Corp., 21 AD3d 824, 826 [1st Dept 2005] [same].)

On motion sequence 016, plaintiff also seeks to preclude defendant's medical experts "from testifying beyond the four corners of their exchanged reports." (NYSCEF No. 319 at 3.) This request is denied without prejudice as premature. The court declines to rule out categorically particular questions or items of testimony without knowing the context in which a particular question is being asked or testimony offered. This determination is without prejudice to plaintiff objecting at trial to particular testimony offered by a defense expert as beyond the scope of that expert's disclosure (or an objection on the same ground made by defendant to testimony by one of plaintiff's experts).

II. Motion Sequence 014

On motion sequence 014, plaintiff moves to preclude "any evidence, testimony, questioning or reference regarding Ms. Breton's immigration status." (NYSCEF No. 317 at 1.) The motion is granted. Given plaintiff's representations that she "is not making any claims for lost wages in this matter" and that "[f]uture treatment is not anticipated" (id. at 2), any questions or evidence about plaintiff's immigration status would be irrelevant to the claims and defenses in this action; and the potential for unfair prejudice is readily apparent.

III. Motion Sequences 011 and 017

On motion sequence 011, defendant moves for an order permitting defendant at trial to "cross-examine plaintiff and her medical expert about the allegations against plaintiff's medical treatment providers in federal RICO actions." (NYSCEF No. 327 at 1 [notice of motion].) Conversely, on motion sequence 017, plaintiff moves to preclude "all parties from mentioning in any fashion" allegations made in those federal actions against plaintiff's predecessor counsel (Subin Associates, LLP) and some of plaintiff's treating medical providers. (NYSCEF No. 320 at 1.) The motions are granted in part and denied in part.¹

Allegations in a separate action are collateral for cross-examination purposes when they are "neither relevant to some issue in the case other than credibility" nor "independently admissible" on some other ground (whether as evidence in chief or for impeachment). (Badr v Hogan, 75 NY2d 629, 635 [1990].) And because the federal RICO allegations have not "resulted in an adverse finding" against predecessor counsel or the treating providers, the fact that the allegations have been made in a lawsuit is not itself a proper subject for cross-examination on a collateral subject. (Drayton v Putnam Hosp. Ctr., 235 AD3d 722, 723 [2d Dept 2025], citing Dance v Town of Southampton, 95 AD2d 442, 452-453 [2d Dept 1983] [same].)

That the federal RICO allegations have not been proven does not necessarily foreclose questions about the underlying conduct at issue in the RICO actions. A witness "may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility" through having "some tendency to show moral turpitude" on the part of the witness." (Badr v Hogan, 75 NY2d at 634; accord 1515 Summer St. Corp. v Parikh, 13 AD3d 305, 307 [1st Dept 2004].) Allegations made in prior or pending lawsuit(s), if they form "a good faith basis for inquiring" into facts and circumstances underlying those allegations (and also bearing on the witness's credibility), may warrant permitting cross-examination of the witness on those underlying facts and circumstances.² (People v Smith, 27 NY3d 652, 662-663, 664, 667-668, 669-670 [2016]; accord People v Rouse, 34 NY3d 269, 275-278 [2019]; People v Fishbein, 238 AD3d 543, 544 [1st Dept 2025]; Donahue v Quikrete Cos., 19 AD3d 1008, 1009-1010 [4th Dept 2005]; compare Dance, 95 AD2d at 453 [holding that cross-examination "based upon arrest warrants and criminal charges" that did not lead to convictions was improper when "no foundation was laid for any specific acts of misconduct" underlying those warrants and charges].)

This principle is subject to important limits. In determining whether to permit cross-examination into prior alleged bad acts, the trial court "retains broad discretion to weigh the probative value of evidence of prior bad acts against the possibility" of jury confusion or a "substantial danger of undue prejudice." (Smith, 27 NY3d at 660 [internal quotation marks omitted]; cf. Mazella v Beals, 27 NY3d 694, 711 [2016] ["It is an abuse of a trial court's discretion to admit evidence of bad acts when such evidence lacks any probative value, or bears only marginal relevance, outweighed by its prejudicial effect."].) If cross-examination on a collateral matter is permitted, the cross-examining party may not seek to refute the witness's answers on that collateral matter through calling other witnesses or introducing extrinsic evidence. (See Badr, 75 NY2d at 635-636; Young v Lacy, 120 AD3d 1561, 1562 [4th Dept 2014] [distinguishing between whether a party may cross-examine a witness on collateral bad acts going to the witness's credibility and whether the cross-examining party may introduce evidence relating to those collateral bad acts].)

Applying these principles to the motions at hand, this court concludes as follows. Defendant does not contend that plaintiff is one of the plaintiffs or claimants who is identified in one or more of those complaints as being an (alleged) participant in the allegedly fraudulent schemes at issue in the RICO actions. (Cf. Santacruz v 58 Gerry St. LLC, 246 AD3d 600, 600 [1st Dept 2026] [affirming the denial of leave to assert a fraud counterclaim against a plaintiff whom defendants "urge . . . is the 'Claimant A' " referenced in an unrelated RICO complaint"].) Those RICO actions are thus collateral here.

Because the RICO actions are collateral, defendant may not introduce evidence of facts relating to (or underlying) the allegations in those actions. Additionally, the existence of the RICO actions, that plaintiff's predecessor counsel and some of her treating medical providers have been sued in one or more of those actions, and the particular allegations against them in the complaints in those actions may not be used as impeachment material in themselves. For the same reasons, defendant may not reference in his opening or closing statement the existence of the RICO actions or the identities of, and allegations against, the defendants in those actions.

To the extent that defendant wishes to cross-examine plaintiff, or plaintiff's testifying medical expert, on topics related to the facts underlying the RICO actions, defendant must first establish a good-faith basis to believe that questioning on those topics will bear on their credibility in this action by demonstrating that they have committed acts that have "some tendency to show moral turpitude." (Badr, 75 NY2d at 634.) And defendant must also establish at trial that any line of cross-examination of plaintiff or her medical expert on these topics will have sufficient probative value to outweigh the risk of prejudice. Given the necessarily fact-specific nature of this inquiry, this court declines to resolve categorically at this time whether the risk of unfair prejudice will outweigh the probative value of any particular line of questioning.

Defendant's motion is granted only to the extent that he may cross-examine plaintiff and her testifying medical expert about the allegations in the federal RICO actions, if he can satisfy the preconditions to cross-examination set forth above, and otherwise denied. Plaintiff's motion is granted in part and denied in part as set forth above.

IV. Motion Sequence 013

On motion sequence 013, defendant moves for an order permitting him to introduce the asserted "admission under oath" of one of plaintiff's treating physicians "that he performed an unnecessary surgery on a patient who was a plaintiff in a personal[-injury] action." (NYSCEF No. 337 at 1 [notice of motion].) The motion is denied.

As an initial matter, the parties have agreed that the trial of this matter should be bifurcated into separate liability and (if necessary) damages phases. Whether surgery performed on plaintiff by her treating physician was unnecessary would appear on its face to pertain to plaintiff's damages should defendant be held liable, not also on liability. To that extent, this motion is premature.

Even assuming that defendant seeks to introduce this evidence to defeat liability, though, defendant has not shown that this evidence is potentially admissible. As discussed above in Point III, supra, this evidence could be introduced (presumably on cross-examination of plaintiff or her treating physician) only if it is not collateral. (See Badr, 75 NY2d at 635.) That is, the evidence must be "independently admissible to impeach a witness." (Id.) This court is unpersuaded that defendant has shown that the evidence is independently admissible.

Defendant argues, in effect, that the testimony at issue (given in a prior, unrelated personal-injury action) is admissible on a propensity theory—that because the treating physician assertedly "perform[ed] an unnecessary surgery on a patient who was a plaintiff in a personal-injury action," it is more likely that the surgery he performed on plaintiff here was unnecessary. (NYSCEF No. 338 at 7.) In particular, defendant says, this evidence comes within the "common plan or scheme" exception to the general bar on propensity evidence. (Id. at 6.) This court disagrees.

Evidence admitted under the common-plan exception is "offered not to establish a particular intent, but to prove that the person did the act in issue." (Matter of Brandon, 55 NY2d 206, 212 [1982].) A party seeking admission of evidence under this exception must satisfy stringent requirements. It is not enough for that party to show "mere similarity between the acts" at issue. (Id.) Rather, the party must show a connection between the acts that "unite[s] them for the accomplishment of a common purpose"—such "a clear concurrence of common features" in "time, space and character" that the acts at issue are naturally understood as "caused by a general plan of which they are the individual manifestations." (Id. [internal quotation marks omitted]; accord Mullen v Wishner, 178 AD3d 830, 832 [2d Dept 2019] [holding that evidence of a prior act was inadmissible absent a showing "that the alleged similar instance was anything more than a separate and independent act committed as the occasion arose, and not in pursuance of any preconcerted general plan or design"].)

Defendant has not made the necessary showing. On defendant's reading of the testimony that it seeks to introduce (see NYSCEF No. 338 at 3-6 [mem. of law]), plaintiff's treating physician admitted that he performed a prior surgery that was unnecessary, in light of the fact that his examination of the injured party had reflected that her knee injury was resolving properly through physical therapy, without need of surgical intervention. (See NYSCEF No. 342 at Tr. 34-40, 43-44, 46-54.) In this action, on the other hand, defendant's theory of the case is that the alleged underlying "accident did not occur" in the first place; and that plaintiff's claimed injuries "could not have been and were not caused by the alleged accident." (NYSCEF No. 338 at 6.) Performing surgery that was unnecessary because no injury had occurred is quite different from performing surgery that was unnecessary because the injuries that had occurred were healing on their own. Defendant has not established that these two assertedly unnecessary surgeries were nonetheless sufficiently similar and related that they are properly understood as individual elements of a preconceived, overarching plan undertaken by plaintiff's treating physician. (See Mullen, 178 AD3d at 832.)

V. Motion Sequences 010, 012, and 015

On motion sequence 015, plaintiff moves to preclude defendant's engineering expert, Dr. Ali M. Sadegh, from testifying at trial. (See NYSCEF No. 310 at 1.) On motion sequence 012, defendant asks this court to permit Dr. Sadegh to testify at trial. (See NYSCEF No. 332 at 1.) And on motion sequence 010, defendant asks this court, if it precludes Dr. Sadegh's testimony, also to preclude plaintiff's engineering expert, Vincent Pici, from testifying either. (See NYSCEF No. 324 at 1.) Motion sequence 015 is denied without prejudice. Motion sequence 012 is granted, subject to renewal at trial on a more-developed record. Motion sequence 010 is denied as academic.

Plaintiff's principal argument is that because Dr. Sadegh is a biomechanical engineer without medical training, he is "incompetent to offer expert testimony at trial as to the causation or lack thereof of injuries"; and that, in the alternative, this court should hold a Frye hearing on whether Dr. Sadegh's testimony should be admitted. (NYSCEF No. 318 at 3, 17.) These arguments are unpersuasive. The Appellate Division has held several times over the past decade that a Frye hearing is not required before permitting a biomechanical engineer to opine on whether the accident as alleged could have brought about plaintiff's injuries. (See Guerra v Ditta, 185 AD3d 667, 668 [2d Dept 2020]; Shah v Rahman, 167 AD3d 671, 673 [2d Dept 2018]; Vargas v Sabri, 115 AD3d 505, 505 [1st Dept 2014].) Moreover, the Appellate Division has expressly rejected arguments that biomechanical engineers lacking medical training should be precluded from offering testimony of this kind. (See Drapper v Horan, 235 AD3d 584, 584-585 [1st Dept 2025]; Vargas, 115 AD3d at 505-506.)

Plaintiff's remaining arguments against permitting Dr. Sadegh to testify are grounded in challenges to the basis of and support for his conclusions, as set out in his expert affidavit and affidavits offered at summary judgment. (See NYSCEF No. 318 at 7-9.) These arguments are not without force: Dr. Sadegh's summary-judgment affidavits, for example, repeatedly make factual assertions that are not obviously within his expertise and which do not identify their sources. (See e.g. NYSCEF No. 334 at 4 ¶ 10, 5-7 ¶¶ 13-15 [pdf pagination]; id. at 11-12 ¶¶ 7-9.) At the same time, this court is unpersuaded that this potential shortcoming is a basis to preclude categorically Dr. Sadegh from offering testimony at trial—not least because Dr. Sadegh may lay any necessary foundation for his opinions at that time. Plaintiff's challenges to the bases for his testimony are best left for objection and cross-examination at trial on a more-complete record.

The court concludes, therefore, that plaintiff's request to preclude Dr. Sadegh's testimony should be denied without prejudice. Defendant's request to permit Dr. Sadegh to testify at trial is granted, subject to any renewed foundation objection(s) that plaintiff may wish to raise at the appropriate time at trial. Because defendant's motion to preclude Mr. Pici's testimony is operative only if this court were to have precluded Dr. Sadegh's testimony, that motion is denied as academic.

Accordingly, it is

ORDERED that defendant's motion to preclude specified testimony by plaintiff's testifying medical expert (mot seq 009) is granted; and it is further

ORDERED that defendant's conditional motion to preclude testimony by plaintiff's engineering expert (mot seq 010) is denied as academic; and it is further

ORDERED that defendant's motion to permit cross-examination of plaintiff and her testifying medical expert about federal RICO actions (mot seq 011) is granted in part and denied in part to the extent set forth above; and it is further

ORDERED that defendant's motion to permit his engineering expert to testify at trial (mot seq 012) is granted, subject to any renewed objections raised by plaintiff at trial; and it is further

ORDERED that defendant's motion to admit testimony given by one of plaintiff's treating physicians in a prior action (mot seq 013) is denied; and it is further

ORDERED that plaintiff's motion to preclude any references at trial to her immigration status (mot seq 014) is granted; and it is further

ORDERED that plaintiff's motion to preclude testimony by defendant's engineering expert (mot seq 015) is denied without prejudice; and it is further

ORDERED that plaintiff's motion to preclude specified testimony by defendant's testifying medical expert (mot seq 016) is granted; and it is further

ORDERED that plaintiff's motion to preclude cross-examination of plaintiff and her testifying medical expert about federal RICO actions (mot seq 017) is granted in part and denied in part to the extent set forth above.

DATE 5/17/2026

FOOTNOTES

1.   This court is unpersuaded by plaintiff's argument (see NYSCEF No. 320 at 1) that this issue was litigated before, and resolved by, the Appellate Division, First Department, on a prior appeal. On that appeal, the First Department held that defendant should not be permitted to amend his complaint to assert a fraud counterclaim relating to the federal RICO allegations on which defendant now seeks leave to question plaintiff. (See Breton v Dishi, 234 AD3d 432, 433 [1st Dept 2025].) The First Department's basis for that holding, though, was that defendant's proposed counterclaim failed to make out some of the elements of a fraud cause of action—in particular, reliance and damages. (See id.) The First Department did not address whether or not defendant had sufficiently alleged that plaintiff knowingly misrepresented material facts. Nor did it categorically "den[y] the defendant the right to pursue such an issue" through means other than a damages counterclaim, as plaintiff now suggests. (NYSCEF No. 320 at 1.)

2.   In McGill v Whitney Museum of Am. Art, this court (Kingo, J.) concluded that when a given line of cross-examination would pertain only to a collateral credibility issue, the cross-examining party may not ask questions "based on unproven allegations in a separate lawsuit." (McGill v Whitney Museum of Am. Art, 2024 NY Slip Op 51271[U], at *2 [Sup Ct, NY County 2024].) To the extent that McGill's holding on this point extends to cross-examination questions about the facts underlying those allegations, as opposed to questions about the allegations themselves, this court respectfully disagrees with that holding.

Gerald Lebovits, J.