Opinion
2013-03-21
Brian COKENG, et al., Plaintiffs–Respondents, v. OGDEN CAP PROPERTIES, LLC, et al., Defendants–Appellants.
Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta III of counsel), for appellants. Edward T. Chase, Mount Vernon, for respondents.
Fixler & LaGattuta, LLP, New York (Paul F. LaGattuta III of counsel), for appellants. Edward T. Chase, Mount Vernon, for respondents.
ANDRIAS, J.P., SAXE, DEGRASSE, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Jeffrey Oing, J.), entered April 24, 2012, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint for lack of causation, or, alternatively, for an order scheduling a Frye hearing to examine the basis of the opinion of plaintiffs' expert epidemiologist/toxicologist, or, in the further alternative, for preclusion of that expert's opinion, and upon preclusion, summary judgment dismissing plaintiffs' complaint, unanimously affirmed, without costs.
Defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate all material issues of fact ( see Lesocovich v. 180 Madison Ave. Corp., 81 N.Y.2d 982, 985, 599 N.Y.S.2d 526, 615 N.E.2d 1010 [1993] ). Notably, defendants advanced no affidavit from a toxicology or epidemiology expert, nor did they otherwise eliminate all material issues of fact regarding general and specific causation. Accordingly, the motion court correctly denied summary judgment to defendants “regardless of the sufficiency of the opposing papers” ( Lesocovich, 81 N.Y.2d at 985, 599 N.Y.S.2d 526, 615 N.E.2d 1010).
We note that defendants' arguments regarding the report by plaintiffs' expert epidemiologist/toxicologist constitute issues of credibility and accuracy, the resolution of which are matters within the province of the jury ( see Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 25, 888 N.Y.S.2d 479 [1st Dept. 2009] ).
The motion court also correctly denied defendants' motion seeking a Frye hearing on plaintiffs' expert epidemiologist/toxicologist ( see Frye v. United States, 293 F. 1013 [D.C. Cir.1923] ), as the expert's opinions are based on well-established and accepted methodologies ( see Nonnon v. City of New York, 88 A.D.3d 384, 394, 932 N.Y.S.2d 428 [1st Dept. 2011] ).