You are here: / / ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING...
, ,

ALTHOUGH A FRYE HEARING WAS NOT NECESSARY BECAUSE BIOMECHANICAL ENGINEERING IS AN ACCEPTED SCIENTIFIC THEORY, THE BIOMECHANICAL ENGINEER’S TESTIMONY SHOULD NOT HAVE BEEN ADMITTED IN THIS REAR-END COLLISION CASE; NO FOUNDATION WAS LAID FOR THE ENGINEER’S TESTIMONY; PLAINTIFF’S MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion to set aside the defense verdict in this rear-end collision traffic accident case should have been granted. Although Supreme Court was correct in finding that a Frye hearing was not necessary because biomechanical engineering is an accepted scientific theory, no proper foundation was laid for the defense expert’s (Toosi’s) testimony:

The court properly relied upon a decision of this Court and a decision of the Appellate Term, First Department, in determining that biomechanical engineering is a scientific theory accepted in the field … . …

Separate and distinct from the Frye inquiry is the ” admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case'” … . “The question is whether the expert’s opinion sufficiently relates to existing data or is connected to existing data only by the ipse dixit of the expert” … . Here, the defendant failed to establish that Toosi’s opinions related to existing data and were the result of properly applied accepted methodology … . Thus, Toosi’s testimony should have been precluded. Guerra v Ditta, 2020 NY Slip Op 03771, Second Dept 7-8-20

 

You might also like
AN ARBITRATOR’S DETERMINATION WILL NOT BE REVERSED BECAUSE OF AN ERROR OF LAW, BUT WILL BE REVERSED WHERE, AS HERE, IT IS IRRATIONAL (SECOND DEPT).
DOCTRINE OF MUTUAL MISTAKE APPLIED TO REFORM NOTE AND MORTGAGE.
PROVISION IN MORTGAGE WHICH GAVE BORROWER RIGHT TO DE-ACCELERATE THE DEBT DID NOT PRECLUDE PLAINTIFF BANK FROM ACCELERATING THE DEBT BY FILING A SUMMONS AND COMPLAINT, FORECLOSURE ACTION TIME-BARRED (SECOND DEPT).
DESPITE THE ALLEGATION THAT THE DRIVER HAD LOGGED OFF THE UBER APP PRIOR TO THE PEDESTRIAN-VEHICLE ACCIDENT, QUESTIONS OF FACT PRECLUDED SUMMARY JUDGMENT ON THE VICARIOUS LIABILITY THEORY; THE UNEMPLOYMENT INSURANCE APPEAL BOARD’S FINDING THAT THE DRIVER WAS EMPLOYED BY UBER WAS NOT ENTITLED TO PRECLUSIVE EFFECT; ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL (SECOND DEPT).
NEITHER THE ABUTTING PROPERTY OWNER NOR THE CITY WERE ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE (SECOND DEPT).
FATHER’S ABILITY TO BRING FUTURE PETITIONS FOR CUSTODY SHOULD NOT HAVE BEEN CONDITIONED UPON HIS UNDERGOING TREATMENT OR COUNSELING (SECOND DEPT).
DEFENDANT DEMONSTRATED (1) HE WAS MISADVISED THAT HIS GUILTY PLEA WOULD NOT RESULT IN DEPORTATION AND (2), HAD HE BEEN PROPERLY ADVISED, A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT).
THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WAS BASED UPON INADMISSIBLE HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED BY SUPREME COURT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S MOTION TO VACATE ITS DEFAULT BECAUSE IT WAS NEVER SERVED WITH... DEFENDANT DID NOT DEMONSTRATE WHEN THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED...