Sloan v 216 Bedford Kings Corp.

Supreme Court, Kings County

Decided on May 6, 2026

Index No. 506287/2018

Aaron D. Maslow, J.

The following numbered papers were used with respect to the determination herein: NYSCEF Document Numbers 925-941, 947.

I. Introduction

In advance of the trial in this action, Plaintiffs Hilary Sheryl Sloan ("plaintiff Sloan") and Noah Shulman (collectively "the plaintiffs") moved in limine with 11 branches to their motion. Defendant 216 Bedford Kings Corp. ("the defendant") moved in limine with 30 branches to its motion. This decision and order determines Branch Nos. 1 and 2 of the plaintiffs' motion, which seek to preclude the defendant from calling as expert witnesses Dr. Leonard Freifelder and Dr. Lloyd Saberski.^FN1

II. Background

On January 10, 2018, plaintiff Sloan was allegedly injured when she slipped and fell on a patch of ice while walking on the sidewalk abutting 216 Bedford Avenue in Brooklyn. The defendant 216 Bedford Kings Corp. was the owner of the property at that address. As a result, plaintiff Sloan claims injuries to her left wrist, left shoulder, and left arm. Most notably, plaintiff Sloan claims a comminuted fracture of the distal left humerus that required multiple surgeries and resulted in associated nerve pain, neuropathy, and Complex Regional Pain Syndrome ("CRPS"). Plaintiff Sloan treated extensively with various physicians in the years following the accident and, to date, she claims to have undergone ten surgeries. Asserting economic damages (both past and future) totaling $25,956,905.00 and past and future damages for pain and suffering, plaintiff Sloan alleges that permanent disability prevents her from working. Plaintiff Noah Shulman, husband of plaintiff Sloan, sues derivatively for loss of consortium and services.

III. The Plaintiffs' Contentions

Plaintiffs contends that the testimony of Dr. Leonard Freifelder, the defendant's expert economist, should be precluded. Initially, they argue that expert discovery concerning Dr. Freifelder was served on April 22, 2026. There have been several adjournments of the trial, including that occasioned by defense counsel's request for a continuance to her disability. Plaintiffs emphasize that Dr. Freifelder's report is dated April 13, 2026, and argue that since it was not exchanged until April 22, 2026, defense counsel engaged in intentional sandbagging, shenanigans, and an intentional and willful failure to disclose. "Nothing in Dr. Freifelder's report was time sensitive and [it] could [ ] have been obtained years ago" [*2](NYSCEF Doc No. 926 ¶ 8). Permitting "Dr. Freifelder to testify would be extremely prejudicial to the plaintiff[s] and in violation of the Courts directives" (id. ¶ 19).

Moreover, the plaintiffs note that Dr. Freifelder relies on opinions of the defendant's other doctors, who concluded that plaintiff Sloan's injuries have resolved, she does not have CRPS, and she does not require future accident-related medical are or services. Hence, Dr. Freifelder opines that her future care costs are $0, and the plaintiffs argue, "[T]his expert is also cumulative and adds only unsupported, speculative and conclusory opinions much of which do not belong in an economic analysis" (id. ¶ 20).

The testimony of Dr. Lloyd Saberski, a non-examining pain management expert, should also be precluded, argue the plaintiffs. His testimony would be cumulative, they claim, because the defendant is also expected to call Dr. Christopher Gharibo, who specializes in anesthesiology and pain management and who actually examined plaintiff Sloan. "Respectfully, when two physicians share the same specialty, clearly the examining physician should be in the better position to express an opinion in these specialties" (id. ¶ 26).

Additionally, Dr. Saberski, while having named doctors and facilities whose records he reviewed, failed to specify the actual records or clinical data he relied on. "[I]t is unclear whether this witness is relying on conduit hearsay or other deficient inadmissible evidence" (id. ¶ 32). Further, the plaintiffs take issue with Dr. Saberski's statements referencing chronic pain endured by plaintiff Sloan in the years prior to the 2018 accident. Plaintiffs take issue with Dr. Saberski's reference to pain medications in prior years as "wholly made up" (id. ¶ 36). Plaintiffs request a Frye hearing.

Finally, the plaintiffs argue that Dr. Saberski's opinions were untimely exchanged on March 19, 2026 and supplemented on April 2, 2026.

IV. The Defendant's Contentions

In opposition, the defendant concedes that disclosure of Dr. Freifelder was not timely but insists that the delay was neither intentional nor willful. Neither was the late disclosure of Dr. Freifelder prejudicial to the plaintiffs. "Here, despite 216 Bedford's reasonable efforts to adjourn the trial for a variety of legitimate reasons, Plaintiffs have opposed such adjournment. Naturally, it follows that such opposition forfeits any argument that Dr. Freifelder's admission prejudices their time to prepare for trial." (NYSCEF Doc No. 947 ¶ 6.)

Since Dr. Freifelder is the defendant's only economist, his testimony is not cumulative, maintains the defendant. This is especially so when compared to Dr. Canter, who is a life care planner and vocational rehabilitation expert — not an economist. If there is overlap in the testimony from two experts, the remedy is to limit testimony from the second expert which duplicates that of the first.

The defendant argues vis-à-vis Dr. Saberski that his testimony will not be cumulative of that of Dr. Gharibo. "While both experts will ultimately opine that Sloan does not have CRPS and that her complaints of pain are better explained by preexisting nerve issues, their methodology and some of their conclusions are different" (id. ¶ 10). "Dr. Gharibo bases his opinion on his physical examination of Sloan. Speaking broadly, he will testify that he examined Sloan, that she does not meet the criteria for CRPS, and that she is functional." (Id. ¶ 11.) "Dr. Saberski, on the other hand, bases his opinion on his review of Sloan's medical records, reports of the other experts in this case, and Sloan's deposition. He will testify that (1) Sloan's medical records do not support that she has CRPS; (2) the life care plan of [*3]Plaintiffs' life-care planner, Dr. Wolstein, is medically unnecessary and unrelated to Sloan's slip and fall; and (3) Sloan's pain is better explained by an intervening cause following the accident, not the fracturing of her humerus" (id. ¶). Regarding the last point, "Dr. Saberski will testify Sloan's medical records show Sloan allowed her dog to lick the incision from her May 4, 2018 elbow surgery, which caused the incision to become infected with staphylococcus intermedius. . . . He will testify that, to treat the infection, Sloan underwent multiple irrigation and debridement procedures through the summer of 2018. . . . He will opine that the trauma from the infection and resulting surgeries are 'a significant intervening cause of her current pain complaints.' " (Id.)

V. Discussion

(A) Expert Disclosure

Dr. Leonard Freifelder, who consults through his own economics, statistics, and actuarial science firm and is described by the defendant as "experienced in the application of economic models and statistical analysis in various types of litigation" (NYSCEF Doc No. 932 at PDF 5), submitted a report dated April 13, 2026. He analyzed plaintiff Sloan's claimed economic losses in the nature of "her accident-related loss of earnings, Social Security retirement benefits, household services, and the future cost of treating the injuries that Ms. Sloan sustained in January 2018" (id. at PDF 12). Dr. Freifelder reviewed plaintiff Sloan's earnings before and after the subject January 2018 accident. She earned more in the years after the accident than she did before. Dr. Freifelder referenced information and opinions from Drs. Daniel Wolstein, Debra S. Dwyer and Alan M. Leiken; these are professionals whom the plaintiffs intend to call as witnesses or with whom they consulted. Dr. Freifelder commented that "Another problem with Dr. Dwyer and Dr. Leiken's economic loss of earnings estimate is that there appear to be errors in the amounts that they have used to determine Ms. Sloan's pre-injury and post-injury income for the years 2018 to 2025" (id. at PDF 17). Toward the end of Dr. Freifelder's report, he referenced that the defendant's IME doctors concluded that plaintiff Sloan's injuries from the subject accident have resolved, and together with his prior analysis, he "estimated the cost of Ms. Sloan's future accident-related care as $0" (id. at PDF 25).

Dr. Lloyd Saberski is Board certified in anesthesiology, pain management, and internal medicine. He enumerated the medical records he reviewed. He set forth the following conclusions: Plaintiff Sloan had pre-existing conditions of refractory cervical radiculopathy; she does not have CRPS; and he disagrees with the opinion of the plaintiffs' expert, Dr. Wolstein, who attributes 100% of plaintiff Sloan's neuropathic needs to the 2018 slip-and-fall accident. These conclusions are based on specifically identified events and examinations, with Dr. Saberski mentioning at least the years.

(B) Statutory and Case Law

"The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see De Long v County of Erie, 60 NY2d at 307; see Christoforatos v City of New York, 90 AD3d at 970)" (Robins v City of Long Beach, 192 AD3d 709, 710 [2d Dept 2021]; see People v Cronin, 60 NY2d 430 [1983]). Generally, expert opinion is proper when it would help clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror (see De Long v County of Erie, 60 NY2d 296, 307 [1983]; Matter of Islam v Lee, 115 AD3d 952, 953 [2014])."

CPLR 3101 (d) (1) (i) requires that expert disclosure include "the substance of the facts and opinions on which each expert is expected to testify . . . and a summary of the grounds for each expert's opinion."

In connection with a sufficient basis for an expert's testimony, the following is instructive:

[E]ven if the proffered expert opinion is based on accepted methods, it must satisfy "the admissibility question applied to all evidence—whether there is a proper foundation—to determine whether the accepted methods were appropriately employed in a particular case" (Parker v Mobil Oil Corp., 7 NY3d at 447).

Here, the defendants did not sustain their burden of establishing that Bowles's opinion that the force generated by the accident could not have caused the plaintiff's knee injuries was based on generally accepted principles and methodologies (see Ratner v McNeil-PPC, Inc., 91 AD3d at 71; Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 57-58 [2011]; Lara v New York City Health & Hosps. Corp., 305 AD2d 106, 106 [2003]), or that there was a proper foundation for the admission of that opinion (see Dulin v Maher, 200 AD2d 707, 708 [1994]). The expert disclosure notice simply stated that Bowles analyzed "the medical and engineering aspects of the accident." While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff's knees to come into contact with the vehicle dashboard. Under these circumstances, the Supreme Court should have granted the plaintiff's motion to the extent of precluding Bowles from offering his opinion testimony that the force generated by the accident could not have caused the plaintiff's knee injuries (see Saulpaugh v Krafte, 5 AD3d 934 [2004]; cf. Valentine v Grossman, 283 AD2d 571 [2001]). Accordingly, we reverse the judgment and remit the matter to the Supreme Court, Suffolk County, for a new trial on the issue of damages. (Dovberg v Laubach, 154 AD3d 810, 813-814 [2d Dept 2017].)

More recently, the Appellate Division, Second Department, wrote:

"In determining the admissibility of expert testimony, New York follows the rule of Frye v United States that expert testimony based on scientific principles or procedures is admissible but only after a principle or procedure has gained general acceptance in its specified field" (Lugo v New York City Health & Hosps. Corp., 89 AD3d 42, 55 [citation and internal quotation marks omitted]; see People v Wesley, 83 NY2d 417, 422). The burden of proving general acceptance rests upon the party offering the disputed expert testimony (see Zito v Zabarsky, 28 AD3d 42, 44; Del Maestro v Grecco, 16 AD3d 364, 366). A Frye inquiry "is not concerned with the reliability of a certain expert's conclusions, but instead with whether the experts' deductions are based on principles that are sufficiently established to have gained general acceptance as reliable" (Lugo v New York City Health & Hosps. Corp., 89 AD3d at 56 [internal quotation marks omitted]). (Terehoff v Frenkel, AD3d , 2026 NY Slip Op 02688, *2 [2d Dept 2026].)

In determining a motion in limine to preclude an expert from testifying, where the basis of the expert's testimony is questioned, it is prudent for the court to await making a determination of preclusion "before any witness had an opportunity to testify" (Jiminez v Gasque, 111 AD3d 675, 675-676 [2d Dept 2013] ["The Supreme Court's determination prevented Dr. Passick from rendering any opinion based upon admissible evidence, such as, inter alia, arthroscopic photographs. On this record, the court had no basis upon which to preclude Dr. Passick's testimony."]).

"As a general rule, the issue of whether evidence should be excluded as cumulative rests within [*4]the sound discretion of the trial court (Bergamaschi v Gargano, 293 AD2d 695, 696 [2002]; see Greenberg v Greenberg, 144 AD3d 625, 629 [2016]; Rosabella v Fanelli, 225 AD2d 1007, 1008 [1996])" (Rucigay v Wyckoff Hgts. Med. Ctr., 194 AD3d 865, 867 [2d Dept 2021] [internal quotation marks omitted]).

Where one expert's testimony is based on methodology and informational sources distinct form the other's, it is not cumulative (see Matter of State of New York v Justin D., 145 AD3d 735, 736 [2d Dept 2016]). Blanket preclusion of a party's experts is improper where they will address different subjects (see Shafran v St. Vincent's Hosp. & Med Ctr., 264 AD2d 553 [1st Dept 1999]).

It is error for a court to preclude the expert testimony of an examining doctor merely because another doctor testified and offered his opinion based on a review of medical records:

At trial, the defendant presented the expert testimony of a pediatric neurologist, Walter Molofsky. Molofsky had not examined the infant and, therefore, based his opinions upon his review of the medical records. On cross-examination, the plaintiff's counsel challenged Molofsky's opinions based upon the fact that he had not examined the infant, and raised the fact that another pediatric neurologist, Joseph Maytal, had examined the infant on behalf of the defendant, but had not been called to testify. The defendant sought permission to call Maytal for the limited purpose of testifying as to his clinical findings upon examination. The court denied the defendant's request on the ground that Maytal's testimony would be cumulative to Molofsky's testimony.

"[W]hether evidence should be excluded as cumulative rests within the sound discretion of the trial court" (Shafran v St. Vincent's Hosp. & Med. Ctr., 264 AD2d 553, 556 [1999] [internal quotation marks and citations omitted]). However, as the defendant contends, Maytal's testimony would not have been cumulative to the extent that it would have been limited to his clinical findings regarding his physical examination of the infant. Molofsky chiefly testified regarding the issue of causation, i.e., whether the infant's injuries were caused by a hypoxic event during the delivery. He was precluded by the trial court from testifying concerning Maytal's examination report because it had not been entered into evidence. Thus, although there was potential for overlap between the testimony of Maytal and Molofsky, the trial court should have allowed Maytal's testimony, limiting the subject matter of his testimony to his clinical findings upon physical examination, as requested by the defendant, rather than precluding Maytal's testimony altogether (see id. at 557; Rojas v Greyhound Lines, 254 AD2d 188 [1998]; Jellema v 66 W. 84th St. Owners Corp., 248 AD2d 117 [1998]). (Nunez v New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 110 AD3d 686, 687-688 [2d Dept 2013]; see Krinsky v Rachleff, 276 AD2d 748 [2d Dept 2000]; Berry v Jewish Bd. of Family & Children's Servs., 173 AD2d 670 [2d Dept 1991].)

Concerning the issue of the timeliness of expert disclosure, it has been held as follows:

Contrary to the plaintiff's contention, the court properly permitted the defendants' expert to testify. "CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007] [internal quotation marks omitted]; see Cutsogeorge v Hertz Corp., 264 AD2d 752 [1999]; Aversa v Taubes, 194 AD2d 580 [1993]). Here, the record does not support a conclusion that the [*5]defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since the plaintiff had two weeks within which to review the material prior to the date when the trial was scheduled to begin. Moreover, any potential prejudice to the plaintiffs could have been eliminated by an adjournment of the trial (see Shopsin v Siben & Siben, 289 AD2d 220 [2001]). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to preclude the defendants' expert from testifying at trial. (Rowan v Cross County Ski & Skate, Inc., 42 AD3d 563, 564 [2d Dept 2007].)

(C) Application of Case Law

The Court will first address the timeliness of disclosure. The trial is presently scheduled to commence next Monday, May 11, 2026. The delay was caused by several factors. Indeed the defendant is responsible for some of the delay, through many last-minute motions. Had the trial not been adjourned due to defense counsel's last-minute claim of personal disability, the trial could have commenced earlier. However, there has been a one-week delay occasioned by the Court being confronted with 41 branches in the competing motions in limine. The plaintiffs' branches number 11. Indeed while the defendant has withdrawn eight of its branches, the plaintiffs have withdrawn only one. Hence, this Court required time to review the remaining branches. As such, the delay in the trial commencing must also be attributed to the plaintiffs.

There being no CPLR deadline for expert disclosure and taking into account that the plaintiffs will have had more than two weeks to review the defendant's disclosure regarding Drs. Freifelder and Saberski — the later one being that pertaining to Dr. Freifelder, which was exchanged on April 22, 2026, nineteen days before May 11, 2026 — it is the Court's view that the two expert witnesses should not be precluded on the ground of late expert witness disclosure (see Rowan v Cross County Ski & Skate, Inc., 42 AD3d at 564). Moreover, the Court notes that since much of Dr. Freifelder's report appears to concern calculations by the plaintiffs' experts, a claim of prejudice does not hold much water; presumably the plaintiffs are familiar with their experts' calculations. The expert witness disclosure for Dr. Saberski has been in the plaintiff's possession since March 19, 2026, with a supplement from April 2, 2026. This would be more than a month prior to the scheduled trial date of May 11, 2026 (see id.).

In any event, the late expert witness disclosure pertaining to Dr. Freifelder — his report being dated nine days prior to its exchange — is attributed by the Court to inadvertent error by the defendant, not to any intentional or willful conduct.^FN2

There is no doubt that the testimony of Dr. Freifelder would help clarify an issue calling for professional or technical knowledge, beyond the ken of the typical juror (see De Long v County of Erie, 60 NY2d at 307; Matter of Islam v Lee, 115 AD3d at 953). An analysis of the plaintiffs' experts' mathematical calculations regarding income earning capacity, particularly where errors in their methodology are claimed, would definitely assist the jury in assessing the plaintiffs' economic claims. It is evident that the prime purpose for the defendants' calling Dr. Saberski as a witness is to bring out plaintiff [*6]Sloan's prior medical history through review of her medical records and to inform the jurors that her neurological condition was affected by a dog licking an open surgical incision, as described in a medical note by Dr. Robert Hotchkiss dated November 15, 2018. The effect of this medical issue is beyond the ordinary knowledge of a jury and certainly a jury is not going to peruse voluminous medical records to determine what, if any, pre-accident medical conditions were borne by a plaintiff (see De Long v County of Erie, 60 NY2d at 307; Matter of Islam v Lee, 115 AD3d at 953).

Contrary to the plaintiffs' enjoinder, a Frye hearing is not necessary. Medical experts routinely testify for defendants based on reviews of medical records. Economists also testify and it is questionable whether a Frye analysis is even implicated when an economist testifies regarding past and projected future earnings (see Newton v State of New York, 165 AD3d 421, 423 [1st Dept 2018]). There is nothing novel about reviewing a person's earnings history (see Johns v Crown Equip. Corp., 242 AD3d 1398, 1399 n 1 [3d Dept 2025]).

The methodology and sources for the expert opinions of Drs. Freifelder and Saberski are properly provided in their respective reports. Some of it is from the plaintiffs' own witnesses and some from the defendant's. They are sufficiently detailed. Contrary to the plaintiffs' contention, Dr. Saberski specified the records or clinical data he relied on. Further, although the plaintiffs take issue with Dr. Saberski's statements referencing chronic pain endured by plaintiff Sloan in the years prior to the 2018 accident, the Court finds no infirmity with this. Plaintiffs take issue with Dr. Saberski's reference to pain medications in prior years as "wholly made up." If indeed that is the case, that is certainly fruit for cross-examination.

Even if an expert relies on incorrect information or is incorrect in their analysis, this goes to the weight to be given by the jury to their testimony, not to its admissibility; deficiencies can be explored during cross-examination (see United Store Fixtures & Importers Corp. v New York City Economic Dev. Corp., 247 AD3d 957, 960 [2d Dept 2026], quoting Ghazala v Shore Haven Apt. Del, LLC, 229 AD3d 447, 449 [2d Dept 2024]). At this point, it would be premature to preclude the testimony of Drs. Freifelder and Saberski based on the exchanged expert reports (see Jiminez v Gasque, 111 AD3d at 675-676), especially since one needs to ascertain whether the reports they rely on form a proper evidentiary basis for their opinions (see Wagman v Bradshaw, 292 AD2d 84, 86-87 [2d Dept 2002]). This necessarily must await the introduction of evidence at the trial.

Finally, with regard to the issue of cumulative evidence, the Court awaits to see if the testimony of either Dr. Freifelder or Dr. Saberski is truly cumulative of Drs. Canter and Gharibo respectively. If there is cumulative testimony, the Court retains the option to prohibit it. At present, however, the defendant has made a sufficient showing that the testimony would not be cumulative (see Rucigay v Wyckoff Hgts. Med. Ctr., 194 AD3d at 867; Matter of State of New York v Justin D., 145 AD3d at 736; Greenberg v Greenberg, 144 AD3d at 629; Nunez v New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 110 AD3d at 687-688; Bergamaschi v Gargano, 293 AD2d at 696; Krinsky v Rachleff, 276 AD2d 748 [2d Dept 2000]; Rosabella v Fanelli, 225 AD2d at 1008; Berry v Jewish Bd. of Family & Children's Servs., 173 AD2d 670).

VI. Conclusion

Accordingly, it is hereby ORDERED that the branches of the plaintiff's motion in limine seeking to preclude the defendant from calling Dr. Leonard Freifelder and Dr. Lloyd Saberski are DENIED.