Miceli v. GEICO Properties, Inc.

215 A.D.2d 461, 626 N.Y.S.2d 266, 1995 N.Y. App. Div. LEXIS 4849

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (O’Brien, J.), dated March 19, 1993, which, upon a jury verdict, is in favor of the defendant Geral Landscaping, Inc., and against the plaintiffs dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiffs’ expert testimony was properly excluded since the expert’s opinion was not based upon facts contained in the record or within his personal knowledge (see, Quinn v Artcraft Constr., 203 AD2d 444; Interstate Cigar Co. v Dynaire Corp., 176 AD2d 699).

Furthermore, the trial court did not err in failing to charge the jury that an amnesiac plaintiff is held to a lower standard of proof than a plaintiff who could testify to the events (see, Schecter v Klanfer, 28 NY2d 228). Although the injured plaintiff clearly suffers from a memory defect, she was able to testify as to her version of the occurrence and therefore, the Schecter rule does not apply (see, Fitzgibbon v County of Nassau, 182 AD2d 670; Jarrett v Madifari, 67 AD2d 396).

The plaintiffs’ remaining contentions are without merit. Miller, J. P., Pizzuto, Santucci and Goldstein, JJ., concur.