Miceli v. GEICO Properties, Inc.

Appellate Division of the Supreme Court of New York

Miceli v. GEICO Properties, Inc.

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

Appellate Division of the Supreme Court of the State of New York·Decided May 8, 1995·Published·Cited by 4 cases

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 [462]*462Landscaping, 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.

Free access — add to your briefcase to read the full text and ask questions with AI

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 [462]*462Landscaping, 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.

Miceli v. GEICO Properties, Inc., 215 A.D.2d 461, 626 N.Y.S.2d 266, 1995 N.Y. App. Div. LEXIS 4849 (N.Y. Ct. App. 1995).

Pincite

215 A.D.2d 461 (Miceli v. GEICO Properties, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related