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THE AFFIDAVIT FROM PLAINTIFF’S ACCIDENT RECONSTRUCTION EXPERT WAS ESSENTIALLY THE SOLE BASIS FOR PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS BICYCLE-CAR ACCIDENT CASE; THE AFFIDAVIT, FOR SEVERAL REASONS, DID NOT RISE TO THE LEVEL OF PROOF REQUIRED TO WARRANT SUMMARY JUDGMENT (THIRD DEPT).

The Third Department determined plaintiff’s motion for summary judgment in this bicycle-car accident case, based entirely on the affidavit from plaintiff’s accident reconstruction expert (Witte), was properly denied. The bicyclist died in the accident. The driver, Amyot, and her husband, a passenger, died later:

… [W]e note that Witte does not aver that his opinion is within a reasonable degree of scientific certainty. Although the failure to do so does not de facto render his affidavit invalid … , the affidavit must contain an evidentiary foundation that would support plaintiff’s verdict if offered at trial … . This it failed to do. Witte’s conclusions — which were based on the timing of the accident, i.e., where Amyot should have seen decedent and the precise distances and times averred to by Witte — are not based on facts evident in the record, but rather on the statement that Amyot’s husband made to police that “[a] couple houses past [the] speed zone on the right, I saw [decedent] on his bike coming out of . . . the driveway.” It is unclear from this statement whether Amyot’s husband was located “a couple” of houses past the speed zone when he saw decedent or whether decedent and the driveway from which he was exiting were located “a couple” of houses past the speed zone. Further, one cannot discern what constitutes “a couple.” For these reasons, the factual foundation lacks the probative force adequate to support summary judgment … . …

… [A]part from the supporting depositions, all of the documents that Witte utilized in forming his opinion are unsworn, uncertified and/or unauthenticated. Although the professional reliability exception to the hearsay rule allows “an expert witness to provide opinion evidence based on otherwise inadmissible hearsay,” it must be shown “to be the type of material commonly relied on in the profession” … . Furthermore, even if such reliability is shown, “it may not be the sole basis for the expert’s opinion” … . Delosh v Amyot, 2020 NY Slip Op 05003, Third Dept 9-17-20

 

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