DORI SYOKOS, KONSTANTINA I. SYOKOS. Sip. DORINN SYOKOS, Third-Par Plaintiff. BRAKO BAJCER and DRAEN BAJCER

Transcription

1 Sip SHORT FORM ORDER Present: HON. LAWRENCE J. BRENNAN Acting Justice Supreme Court NASSAU COUNTY JAMES SCIADONE TRIAL PART: 52 Index No. 445/02 DORI AN SYOKOS BRAO BAJCER and DRAEN BAJCER Defendants DORINN SYOKOS, Third-Par PASQUALE SCIALDONE, Il Third-Par Defendant ---x x PASQUALE SCIADONE Il Index No /04 DORI SYOKOS, KONSTANTINA I. SYOKOS BRAKO BAJCER and DRAEN BAJCER Defendants x

2 x DORINN SYOKOS, as Administratrx of the Estate of KONSTANTINA I. SYOKOS and DORI AN SYOKOS, individually, Index No /02 DRAEN BAJCER, BRANKO BAJCER and PASQUALE SCIALDONE Defendants x PASQUALE SCIALDONE Il Index No /04 DORI ANN SYOKOS, as Administratrx of the Estate of KONSTANTINA J. SYOKOS Defendant x The following papers have been read on this motion: Motion to renew by Defendant Svokos in Actions Nos. 1, 2 and 4 dated 12/14/05 Affirmation in Opposition of James Scialdone in 1 dated 1/4/06 Affirmation in Opposition of Third-Part Defendant/laintiff/Defendant Pasquale Scialdone III in Actions Nos. 1, 2, and 4 dated 1/9/06 Reply Affirmation of Defendants/Third Party s Svokos in Actions Nos. 1 2 and 4 - dated 1/18/06.

3 The motion by the defendants/third-party plaintiffs Svokos in Actions Nos. I, and 4 to renew and reargue the Court' s October 7, 2005 Decision and Order pursuant to CPLR 2214(b), is granted. Upon reconsideration, the Court adheres to its prior determination to the extent that the motion for summary judgment by the Third Party Defendant, Pasquale Scialdone III, and the cross-motion by the, Pasquale Scialdone III, in Action No., were granted. The Court' s October 7, 2005 Decision and Order, in which reference to granting a cross-motion by the, James Scialdone, in Action No., is vacated inasmuch as no such cross-motion was made but only Affirmation in Support was submitted on behalf of, James Scialdone, in, in support of the cross-motion of, Pasquale Scialdone III, in Actions No. 2 and No. The Court finds that the Defendants/Third-Party s Svokos have demonstrated a "good faith" law office omission in failing to submit an affidavit and draft opinion of Mr. McMurte with its initial opposition papers. Clearly, Mr. McMurtrie s final affidavit and report post-dated the Court' s October 7, 2005 Decision and Order concerning the initial motion, albeit apparently at the direction of movant' s counsel. It would clearly have been better practice of counsel for the Defendants/Third Party s Svokos to have moved or requested that the Court delay its determination in anticipation of Mr. McMurtrie s affidavit and report prior to this Court' s October 7, 2005 decision. Nevertheless, counsel had sent its accident video animation to all counsel, as well as its CPLR 3101d(iii) expert witness disclosure prior to submission of its opposition papers. Thus, other counsel were on notice that the Defendants/Third Party s Svokos intended to defend the liability aspects of the case on the merits. Counsel for the, James Scialdone, in, understandably argues that the admission by counsel for the Defendants/Third Party s Svokos, in Actions 1, 2, and 4, the within movants, that his decision not to submit an expert' s affidavit of Howard McMurte, as part of his opposition to the underlying motion and cross-motion to dismiss, was merely strategic. (See: Reply Affirmation of Defendant/Third Part Svokos' counsel at page 3, paragraph 6). He further relies on Abrahamsen v. Brockway Glass Co., Inc., 156 AD 2d 615 (A.D. 2d Dept. 1989), in which a similar tactical determination made by plaintiffs counsel in a products liability case resulted in a denial of a motion to

4 reargue and renew. See: Kratterv. Weintraub, 97 AD2d491 (A. 2dDept.1983). The Court recognizes the evidentiary hardship faced by the Defendants/Third Party s Svokos in view ofthe death ofdoriann Svokos, who apparently made no res gestae or other statements at the accident scene. It is only through an expert' reconstruction, together with deposition and trial testimony, that her counsel can arguably defend her interests. On balance, the Court believes that it would not be in the interests of justice in the totality of these circumstances, to disallow consideration and judicial review of Mr. McMurtrie affidavit and report. However, the Court must exercise its gatekeeper" discretion in assessing the reliability of this putative evidence. Included in the affidvit and report inter alia are: self-serving synopses of depositions of parties and witnesses; an uncertified copy of the relevant Police Report; photographs of the accident scene and of what he described as "exemplar vehicles ; putative data and mathematical calculations; and insufficiently referenced articles and texts. The Court has never (emphasis added) been provided with the complete depositions referred to by any counsel in either the initial motion and cross-motion or in the within motion to renew and reargue. The Court simply cannot rely on Mr. McMurte s deposition synopses, or those of any counsel, as evidence proffered in admissible form. The scientific conclusions opined by Mr. McMurtrie warrant review, but they only address cross claims asserted among the Defendants, Branko Bajcer and Drazen Bajcer, and the Defendants/Third Part s, Doriann Svokos and Konstantina 1. Svokos. His opinion is solely related to the factors involving initial impacts between their respective vehicles. In summary, he posits that the Bajcer vehicle initially strck the Svokos' vehicle one or more times and caused her car to then go out of control across the grassy median, eventually striking the Scialdone vehicle. None of Mr. McMurte s contentions, nor the arguments of Defendants/ Third Part s Svokos ' counsel, suggest or opine that the Third-Part Defendant/laintiffPasquale Scialdone s vehicle in any way caused or contributed to the second accident between the Scialdone and Svokos vehicles. In reviewing the Affidavit, the Court notes that Mr. McMurtrie s report contains interpretations of a number ofn ewton s Laws of Physics and some complex mathematical calculations from another company, the Maine Computer Group I, in South Gardiner, Maine. There are no facts averred which would demonstrate that the

5 calculations are his and, thus, are not inadmissible hearsay. Nor does Mr. McMurte s Affidavit demonstrate any factual basis which would impel the Court to rely on the putative accuracy of the data, much less the conclusions he draws therefrom. See: Wagman v. Bradshaw, 292 A. 2d 84 (A. 2nd Dept. 2002); Niagra Vest, Inc. v. Alloy Briquetting Corp. 244 A. 2d 892 (A.DAthDept. 1997). Similarly, the data referenced from Expert Auto Stats, Forensic Expert Softare in LaMesa, California, are not per se self-authenticating, reliable or probative. Indeed, the actual corporate name is unclear. Nothing in his affidavit attempts to explain or justify why the Court should give them cognizance. In addition, two writings, one a purported policy published by an organization denominated the American Association of State Highway and Transportation Officials (AASHTO), and the other, Volume 2 of the Traffic Accident Investigation Manual by Northwestern University Traffic Institute, are referenced in his report. These are also not per se self-authenticating nor reliable, and, in any event, no copies or even relevant quoted portions thereof are offered in the report, nor annexed to referenced, or explained in his affidavit. Mr. McMurte s opinion, at paragraph 8 of his affidavit, states that his educational background forms part of the basis for rendering an opinion herein. The Court notes that his highest level of academic achievement is an Associate Degree in Criminology from Indiana University in Pennsylvania in He does reference attendance at many professional seminars, institutes and conferences, which might conceivably qualify him to understand, explain, or rely on the aforementioned mathematical calculations and Newtonian physics principles which he posits. However, his affidavit makes no such representations. His actual involvement in having investigated more than accidents, and in having testified in 14 jurisdictions in Pennsylvania, is referred to without further amplification. In particular, no offer of proof is made that he prepared or attested to the necessary professional methodology which was employed in preparing either the mathematical or physics calculations, if any, used in even one of those trials. Nor is there any comment about whether any process relied upon is accepted in the relevant scientific or mathematical communities. Elementary scientific concepts, including peer review, potential rates of error and testability are not even referred to in either his report or affidavit. Mr. McMurtrie s qualifications simply do not qualify him to

6 satisfy necessary professional acceptance standards in order to authenticate either the data or his opinions. See: Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (1993); Frye v. United States, 293 F (D. C. Circ (1923); Kumho Tire Co., Ltd. v. Carmichael, 526 U. S. 137 (1999). In view of the purported evidence submitted, virtally all of which is merely inadmissible hearsay and wholly unsupported conclusory opinions as discussed hereinabove, the Court determines that the Defendants/Third Part s Svokos in Actions Nos. 1 2 and 4, have not set forth sufficient evidence in admissible form to convince the Court that there are significant, material fact questions concerning the operation and control ofthe Defendants Svokos ' vehicle and the Defendants Bajcer vehicle which should be resolved by a jury. The original underlying. motion to grant summary judgment was brought by Third Part Defendant, Pasquale Scialdone III, in There has been no offer of proof in admissible form whatsoever in this motion to renew and reargue which in any way supports any inference that either Pasquale Scialdone III (the original movant and cross movant), or his passenger, James Scialdone, in, caused or contrbuted to the accident. The entire focus of Mr. McMurtrie s affidavit and report addresses only his unsupported opinions about possible factors involving the respective operation and control of the Svokos and Bajcer vehicles, wholly unrelated to the operation or control of the initial movant Pasquale Scialdone Ill's vehicle. In 1 (Index No. 445/02) the third party action, Defendant/Third Party, Doriann Svokos, against Third-part Defendant, Pasquale Scialdone III, is dismissed. In,, Pasquale Scialdone III, against Defendant, Doriann Svokos as Administrator of the Estate of Konstantina Svokos, summary judgment against the Defendant is granted. In,, Pasquale Scialdone III, against Defendants, Doriann Svokos, Konstantina 1. Svokos, Branko Bajcer and Drazen Bajcer, (bearing the same Index No /04, as 4), appears to have been superceded by Action

7 ,. ""' ~~~ No., in which the caption reflects that Pasquale Scialdone Ill' s suit is solely against the Defendant Dori Ann Svokos as Administratrix of the Estate of Konstantina J. Svokos, summary judgment is granted. This constitutes the Decision and Order of the Court. Dated: April 5, LA N E J. BRENNAN A tmg Supreme Court Judge 1. O \?R OI'I'\