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Sean R. v. BMW of North America, LLC

Supreme Court of New York, First Department

March 6, 2014

Sean R., etc., Plaintiff-Appellant,
v.
BMW of North America, LLC, et al., Defendants-Respondents.

Phillips & Paolicelli LLP, New York (Steven J. Phillips of counsel), for appellant.

Biedermann Hoenig Semprevivo, New York (Philip C. Semprevivo of counsel), for BMW of North America, LLC, BMW of North America, Inc. and BMW(US) Holding Corp., respondents.

Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for Hassel Motors, Inc., respondent.

Lawrence, Worden, Rainis & Bard, P.C., Melville (Leslie McHugh of counsel), for Martin Motor Sales, Inc., respondent.

Sweeny, J.P., Acosta, Saxe, Moskowitz, Clark, JJ.

Order, Supreme Court, New York County (Louis B. York, J.), entered May 15, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to reargue a prior order, entered December 21, 2012, granting defendants' motion to preclude the testimony of two of plaintiff's expert witnesses, deemed to have granted reargument, and, upon reargument, to have adhered to the prior order, and, so considered, said order unanimously affirmed, without costs. Appeal from the order entered December 21, 2012, unanimously dismissed, without costs, as subsumed in the appeal from the order entered May 15, 2013.

As a threshold matter, the May 15th order effectively granted reargument, and, upon reargument, adhered to the court's original decision. Accordingly, it is appealable (Centennial Restorations Co. v Wyatt, 248 A.D.2d 193, 197-198 [1st Dept 1998]).

Plaintiff's experts' testimony was properly precluded. The motion court properly determined that the medical and scientific literature submitted by plaintiffs' experts does not support the proffered theory that exposure to gasoline fumes caused plaintiff's birth defects. Rather, the literature shows that some of the constituent chemicals contained in gasoline, and presumably those chemicals' vapors, can cause birth defects. However, plaintiff failed to show how exposure to those constituent chemicals, constituted as unleaded gasoline vapors, could have caused his injuries (see Parker v Mobil Oil Corp., 7 N.Y.3d 434, 449-450 [2006]).

We have considered plaintiff's remaining arguments and find them unavailing.


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