| A-Tech Concrete Co., Inc. v Tilcon N.Y., Inc. |
| 2009 NY Slip Op 01596 [60 AD3d 603] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 1—A-Tech Concrete Company, Inc.,Appellant, v Tilcon New York, Inc., Respondent. |
—[*1] Rogers, McCarron & Habas, P.C., Orangeburg, N.Y. (Patricia A. Habas of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from ajudgment of the Supreme Court, Rockland County (Carey, J.H.O.), dated October 11, 2007,which, after a nonjury trial and upon an amended decision and order of the same court datedSeptember 13, 2007, is in favor of the defendant and against it dismissing the complaint andawarding the principal sum of $62,057.20 on the counterclaim.
Ordered that the judgment is affirmed, with costs.
At trial, the plaintiff sought to introduce, pursuant to the "professional reliability" exceptionto the rule against hearsay, a report and opinion testimony of its expert witness, as well as thereport of an independent laboratory upon which the expert's opinion was based (see generallyHambsch v New York City Tr. Auth., 63 NY2d 723, 725-726 [1984]; Wagman vBradshaw, 292 AD2d 84, 87-90 [2002]). The plaintiff's expert sent samples of certainmaterials to the independent laboratory for testing. He did not conduct, supervise, or observe thetesting, testify about the testing procedures used by the laboratory, or [*2]otherwise indicate that he had personal knowledge of the specifictests conducted. Under these circumstances, the expert's testimony that reports such as thelaboratory report are generally relied upon by professionals in his field did not sufficientlyestablish the reliability of the laboratory report for the purposes of the professional reliabilityexception (see Clevenger v Mitnick,38 AD3d 586, 586-587 [2007]; Wagman v Bradshaw, 292 AD2d at 89-90;Erosa v Rinaldi, 270 AD2d 384, 384-385 [2000]). Thus, the Supreme Court properlysustained the defendant's objection to the admission of the laboratory report as well as the expertreport and opinion testimony based upon the laboratory report.
"As this case was tried without a jury, this Court's authority is as broad as that of the trialcourt, and this Court may render a judgment it finds warranted by the facts, taking into accountin a close case the fact that the trial judge had the advantage of seeing the witnesses" (State Farm Mut. Auto. Ins. Co. v Stack,55 AD3d 594, 595 [2008], citing Northern Westchester Professional Park Assoc. vTown of Bedford, 60 NY2d 492, 499 [1983]). As the Supreme Court's findings anddeterminations concerning the issues of liability and damages were warranted by the facts, theywill not be disturbed.
The plaintiff's remaining contentions are without merit. Prudenti, P.J., Dillon, Covello andLeventhal, JJ., concur.