Gonzalez v Palen

[*1] Gonzalez v Palen 2015 NY Slip Op 51101(U) Decided on July 21, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 21, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr. and Ling-Cohan, JJ.
570998/14

Ruben Gonzalez, Plaintiff-Respondent,

against

Jesus H. Palen and Manuel Diplan, Defendants-Appellants.

Defendants appeal from a judgment of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, J.), entered on or about September 30, 2013, after a jury trial on damages only, in favor of plaintiff and awarding him damages in the principal sum of $175,000. The appeal brings up for review an order (same court and judge), dated July 8, 2013, which granted plaintiff's in limine Frye motion to preclude defendants' expert from testifying.

Per Curiam.

Judgment (Jose A. Padilla, J.), entered on or about September 30, 2013, reversed, without costs, and matter remanded for a new trial on damages.

The trial court erred in determining that defendants' biomechanical engineer, Dr. Kevin Toosi, was not qualified to render an opinion as an expert as to the cause of plaintiff's injuries. Even assuming that an evidentiary hearing was warranted to assess Toosi's professional qualification (see Frye v United States, 293 F 1013 [DC Cir 1923]), the evidence presented at the Frye hearing established that Toosi had the academic and professional qualifications - including a PhD in biomechanical engineering, a license to practice medicine in Iran, and three years' experience in accident reconstruction, which included the study of the effects of force on occupants inside a vehicle - to render an opinion as an expert on the issue of whether the force generated in the subject motor vehicle accident was sufficient to cause the injuries alleged by plaintiff (see Vargas v Sabri, 115 AD3d 505 [2014]). Toosi's lack of a license to practice medicine in the United States did not render him unqualified (id.). To the contrary, Toosi's stated education, background, experience and areas of specialty rendered him able to testify as to the mechanic's of the injury (id.; Plate v Palisade Film Delivery Corp., 39 AD3d 835 [2007]).

Inasmuch as Toosi's testimony was probative of a central issue in the case, the preclusion of this evidence cannot be deemed harmless (see Valentine v Grossman, 283 AD2d 571 [2001]; Plate v Palisade Film Delivery Corp., 39 AD3d at 837). Accordingly, the matter is remanded to Civil Court for a new trial on damages.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur
Decision Date: July 21, 2015