Pascocello v Jibone
2018 NY Slip Op 03466
Decided on May 10, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.


Decided on May 10, 2018
Friedman, J.P., Tom, Kapnick, Kahn, Kern, JJ.

6550N 156445/14 153494/14

[*1] June M. Pascocello, Plaintiff-Respondent,

v

Augustine Jibone, et al., Defendants-Appellants.



Carole Antouri, Plaintiff-Respondent,

v

Augustine Jibone, et al., Defendants-Appellants. [And a Third-Party Action]




Picciano & Scahill P.C., Bethpage (Andrea E. Ferrucci of counsel), for appellants.

Roth & Roth LLP, New York (Elliot Shields of counsel), for June Pascocello, respondent.

Abend & Silber, PLLC, New York (Josh Silber of counsel), for Carole Antouri, respondent.



Order, Supreme Court, New York County (Paul A. Goetz, J.), entered December 5, 2017, which, in these related actions for personal injuries sustained in a motor vehicle accident, granted the joint motion of plaintiffs to preclude the testimony of defendants' biomechanical engineer Dr. Kevin Toosi at trial to the extent that his opinion is based on certain photographic evidence, unanimously affirmed, without costs.

An expert's opinion "must be based on facts in the record or personally known to the witness" (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984] [internal quotation marks omitted]; see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]), and in the absence of such record support, an expert's opinion is without probative force (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). Here, Supreme Court properly precluded Dr. Toosi from offering an opinion based on photographs for which no proper foundation had been established.

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 10, 2018

CLERK