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Cecil Floyd and Josh Kardisch Prevail on Plaintiff’s Appeal Before the Second Department

On December 5, 2018, the Second Department issued a Decision and Order in the matter of Syed A. Shah v. Mo M. Rahman, et al. under Docket No. 2016-04719 which affirmed the Judgment of the Court below.

The Plaintiff appealed from a Judgment of the Supreme Court, Kings County dated March 18, 2016 upon a jury verdict finding that the plaintiff did not sustain a serious injury within the meaning of the New York State Insurance law. At the damages only trial, tried by Cecil Floyd on behalf of the defendants, the plaintiff claimed he sustained herniated cervical discs requiring discectomy and fusion at two levels allegedly resulting from a motor vehicle accident involving the defendants. The plaintiff moved to preclude the defendants’ expert, a biomechanical engineer, from testifying or, in the alternative, for a Frye hearing on the admissibility of the expert’s testimony. The lower Court permitted the expert’s testimony without first holding a Frye hearing. The expert ultimately gave testimony to the effect that the collision could not have caused the plaintiff’s alleged injuries.

The Second Department unanimously agreed with the Supreme Court’s decision to permit the expert’s testimony without first holding a hearing to determine its admissibility, reasoning that a court need not hold a Frye hearing where, as in this case, it can rely on previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony. Moreover, in this particular case, there was a proper foundation for the admission of the expert’s testimony. Mr. Floyd wrote the respondents’ Brief which was successfully argued before the appellate court by Josh Kardisch.

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