        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

279
CA 16-00118
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN,


LYNN LIKOS, AS ADMINISTRATRIX OF THE ESTATE OF
TYLER A. LIKOS, DECEASED, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC.,
DEFENDANT-RESPONDENT.


PAUL WILLIAM BELTZ, P.C., BUFFALO (STEPHEN R. FOLEY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

DAVID J. STATE, GENERAL COUNSEL, BUFFALO (VICKY-MARIE J. BRUNETTE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered October 30. 2015. The judgment dismissed
the complaint upon a jury verdict of no cause of action.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages on behalf of decedent, who was killed when the motorcycle he
was operating collided with a bus owned by defendant. Prior to trial,
defendant disclosed an expert toxicologist who proposed to testify at
trial that decedent was intoxicated on marihuana at the time of the
accident; that such intoxication presented an “unreasonable scenario”
to the bus driver; and that the marihuana in decedent’s system
impaired his reaction time and ability to control his motorcycle and
avoid the collision. In response, plaintiff sought an order
precluding the testimony of defendant’s toxicologist on the grounds
that his proposed testimony was mere speculation and lacked
foundation, and that it would invade the province of the jury.
Plaintiff also argued that the studies relied upon by the expert were
irrelevant and hearsay, and a Frye hearing should be held if Supreme
Court allowed the expert to testify. The court denied plaintiff’s
motion to preclude the expert’s testimony, but determined that
defendant’s expert “[would] not be permitted to testify as to the
decedent’s ‘poor judgment, lack of planning in advance, or impaired
response (in connection with decedent’s alleged failure to timely
engage the motorcycle brakes)’; or upon matters outside his area of
expertise.” After trial, the jury returned a verdict in favor of
defendant. Plaintiff appeals, and we affirm.
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                                                         CA 16-00118

     It is well established that “[t]he determination whether to
permit expert testimony ‘is a mixed question of law and fact addressed
primarily to the discretion of the trial court’ ” (Kettles v City of
Rochester, 21 AD3d 1424, 1426). Initially, we conclude under the
circumstances of this case that plaintiff failed to establish her
entitlement to a Frye hearing. She submitted the affirmation of
counsel, who took issue with the scientific studies relied upon by
defendant’s expert and concluded with no expert support that those
opinions lacked foundation and were speculative. Because counsel did
not establish the basis of the opinions he offered in challenging
defendant’s expert, he failed to make “a credible challenge to the
underpinning of the expert theory” and his affirmation therefore is of
no probative value (Frye v Montefiore Med. Ctr., 100 AD3d 28, 38). In
any event, we note that counsel’s affirmation did not expressly
challenge the proposed opinions of the defense expert as being based
on novel science, and counsel instead argued that the expert’s
opinions lacked foundation, were speculative, and invaded the province
of the jury. We thus conclude that a Frye hearing was not warranted
here, inasmuch as plaintiff failed even to contend that the theory
espoused by defendant’s expert was based on novel scientific
principles (see Johnson v Guthrie Med. Group, P.C., 125 AD3d 1445,
1447; Page v Marusich, 51 AD3d 1201, 1202-1203; Amodio v Bianco, 15
AD3d 979, 980).

     We further conclude that the court did not abuse its discretion
in refusing to preclude the testimony of defendant’s expert
toxicologist. “ ‘The Frye inquiry is separate and distinct from 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’ ” (Muhammad v
Fitzpatrick, 91 AD3d 1353, 1354). On this point, plaintiff contends
that “a study involving no more than twenty subjects is not an
adequate foundation for [the expert’s] opinion that [decedent] had
smoked mari[h]uana 15 minutes before the subject accident.” The fact
that a particular study may be inadequate is relevant to the weight to
be given to the testimony concerning the study, but it does not
preclude its admissibility (see Johnson, 125 AD3d at 1447).
Furthermore, this was not the only study or test addressed in the
expert disclosure, and we therefore cannot conclude that the court
abused its discretion in denying the preclusion motion based on, inter
alia, an apparent lack of foundation for the opinion or relevancy to
the issues of causation and decedent’s negligence (see id.; see also
Tinao v City of New York, 112 AD2d 363, 364, lv denied 67 NY2d 603).

     To the extent that plaintiff contends that the verdict should be
set aside as inconsistent, plaintiff failed to preserve that
contention for our review inasmuch as plaintiff “ ‘failed to object to
the verdict on that ground before the jury was discharged’ ” (Krieger
v McDonald’s Rest. of N.Y., Inc., 79 AD3d 1827, 1828, lv dismissed 17
NY3d 734). Similarly, plaintiff failed to preserve for our review her
contention that the verdict was against the weight of the evidence
because there is no indication in the record that she made a posttrial
motion to set aside the verdict pursuant to CPLR 4404 (a) (see Mazella
v Beals, 124 AD3d 1328, 1329). In any event, the jury could have
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                                                         CA 16-00118

reasonably found that the bus driver’s negligence was not a proximate
cause of the collision between the two vehicles upon determining that
the bus driver could not have anticipated that decedent’s motorcycle
would travel toward him at 90 to 150 miles per hour and thereafter
collide with the bus before it completed its turn. Thus, “ ‘the
preponderance of the evidence in favor of the plaintiff[] [was not] so
great that the verdict could not have been reached upon any fair
interpretation of the evidence’ ” (Barnes v Dellapenta, 111 AD3d 1287,
1288).

     Finally, plaintiff’s contentions that the expert disclosure of
defendant’s accident reconstructionist was inadequate and that his
testimony materially deviated from his expert disclosure are
unpreserved for our review inasmuch as plaintiff’s pretrial motion did
not challenge the expert’s disclosure as inadequate and counsel,
during trial, did not object to the expert’s testimony on the ground
that it deviated from his expert disclosure (see Shoemaker v State of
New York, 247 AD2d 898, 898; McClain v Lockport Mem. Hosp., 236 AD2d
864, 865, lv denied 89 NY2d 817). In any event, we conclude that
plaintiff’s contentions lack merit.




Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
