Neissel v. Iron Horse Cycle Accessories, Ltd.

Appellate Division of the Supreme Court of New York

Neissel v. Iron Horse Cycle Accessories, Ltd.

91 A.D.2d 977, 457 N.Y.S.2d 344, 1983 N.Y. App. Div. LEXIS 16271

Appellate Division of the Supreme Court of the State of New York·Decided January 3, 1983·Published

Opinion

— In an action, inter alia, to recover damages for personal injuries arising out of defendant A.E.E. Choppers, Inc.’s allegedly negligent design and manufacture of a three-wheel bolt-on-kit, said defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated January 12, 1982, which conditionally granted plaintiff’s request for an order of preclusion of trial evidence unless an expert’s report was produced for discovery, and denied its cross motion for a protective order. Order reversed, with $50 costs and disbursements, and matter remitted to Special Term for further proceedings consistent herewith. In light of the conflicting allegations regarding the nature of the testing performed by plaintiff’s expert prior to the alleged alteration of the physical evidence, and whether the physical evidence was altered, it was error to resolve the conflict without conducting a hearing. Accordingly, the matter is remitted to Special Term so that a hearing can be conducted. Titone, J. P., Thompson, Weinstein and Niehoff, JJ., concur.

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— In an action, inter alia, to recover damages for personal injuries arising out of defendant A.E.E. Choppers, Inc.’s allegedly negligent design and manufacture of a three-wheel bolt-on-kit, said defendant appeals from an order of the Supreme Court, Queens County (Durante, J.), dated January 12, 1982, which conditionally granted plaintiff’s request for an order of preclusion of trial evidence unless an expert’s report was produced for discovery, and denied its cross motion for a protective order. Order reversed, with $50 costs and disbursements, and matter remitted to Special Term for further proceedings consistent herewith. In light of the conflicting allegations regarding the nature of the testing performed by plaintiff’s expert prior to the alleged alteration of the physical evidence, and whether the physical evidence was altered, it was error to resolve the conflict without conducting a hearing. Accordingly, the matter is remitted to Special Term so that a hearing can be conducted. Titone, J. P., Thompson, Weinstein and Niehoff, JJ., concur.

Neissel v. Iron Horse Cycle Accessories, Ltd., 91 A.D.2d 977, 457 N.Y.S.2d 344, 1983 N.Y. App. Div. LEXIS 16271 (N.Y. Ct. App. 1983).

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91 A.D.2d 977 (Neissel v. Iron Horse Cycle Accessories, Ltd.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.