| Sean R. v BMW of N. Am., LLC |
| 2014 NY Slip Op 01503 [115 AD3d 432] |
| March 6, 2014 |
| Appellate Division, First Department |
| Sean R., Appellant, v BMW of North America,LLC, et al., Respondents. |
—[*1] Biedermann Hoenig Semprevivo, New York (Philip C. Semprevivo of counsel), forBMW of North America, LLC, BMW of North America, Inc. and BMW (US) HoldingCorp., respondents. Brill & Associates, P.C., New York (Corey M. Reichardt of counsel), for HasselMotors, Inc., respondent. Lawrence, Worden, Rainis & Bard, P.C., Melville (Leslie McHugh of counsel), forMartin Motor Sales, Inc., respondent.
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 toreargue a prior order, entered December 21, 2012, granting defendants' motion topreclude the testimony of two of plaintiff's expert witnesses, deemed to have grantedreargument, and, upon reargument, to have adhered to the prior order, and, soconsidered, said order unanimously affirmed, without costs. Appeal from the orderentered December 21, 2012, unanimously dismissed, without costs, as subsumed in theappeal from the order entered May 15, 2013.
As a threshold matter, the May 15th order effectively granted reargument, and, uponreargument, adhered to the court's original decision. Accordingly, it is appealable(Centennial Restorations Co. v Wyatt, 248 AD2d 193, 197-198 [1st Dept 1998]).
Plaintiff's experts' testimony was properly precluded. The motion court properlydetermined that the medical and scientific literature submitted by plaintiffs' experts doesnot support the proffered theory that exposure to gasoline fumes caused plaintiff's birthdefects. Rather, the literature shows that some of the constituent chemicals contained ingasoline, and presumably those chemicals' vapors, can cause birth defects. However,plaintiff failed to show how exposure to those constituent chemicals, constituted asunleaded gasoline vapors, could have [*2]caused hisinjuries (see Parker v Mobil OilCorp., 7 NY3d 434, 449-450 [2006]).
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Sweeny, J.P., Acosta, Saxe, Moskowitz and Clark, JJ. [Prior CaseHistory: 2013 NY Slip Op 50874(U).]