professional reliability exception in New York

2023Based on the testimony by OPWDD's expert that he relied on certain pedigree information and the diagnoses from other mental health professionals in the report to formulate his opinion, with no other means available to him related to respondent's testing during the developmental period in the 1960s and 1970s, [FN4] it was an error to not apply the professional reliability exception to such hearsay ( see Hinlicky v Dreyfuss , 6 NY3d 636, 648 [2006]; Delosh v Amyot , 186 AD3d 1793, 1796 [3d Dept 2020]).

2018"The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession' " ( Matter of State of New York v Motzer , 79 AD3d 1687, 1688 [4th Dept 2010], quoting Hinlicky v Dreyfuss , 6 NY3d 636, 648 [2006]; see Caleb v Sevenson Envtl.

2008Auth. ( 63 NY2d 723, 726 [1984]), the professional reliability exception was found not to apply in a “No-Fault Law” serious injury case.

2008Auth. ( 63 NY2d 723, 726 [1984]), the Court of Appeals explained that the professional reliability exception requires “evidence establishing the reliability of the out-of-court material.” (Id.) Here, to the extent Dr. Frances’ opinion regarding the respondent’s propensity to escalate his exhibitionism and voyeurism to a hands-on or contact offense relied upon, as she indicated, unspecified “studies” that opinion was not reliable and in the view of this court cannot be credited.

2018"The professional reliability exception to the hearsay rule enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession' " ( Matter of State of New York v Motzer , 79 AD3d 1687, 1688 [4th Dept 2010], quoting Hinlicky v Dreyfuss , 6 NY3d 636, 648 [2006]; see Caleb v Sevenson Envtl.

2014“The professional reliability exception to the hearsay rule ‘enables an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession’ ” (Matter of State of New York v Motzer, 79 AD3d 1687, 1688 [2010], quoting Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]).

2014Under the professional reliability exception to the hearsay rule, an expert may “provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Drey fuss, 6 NY3d 636, 648 [2006]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; compare Matter of Dakota F. [Angela F.], 110 AD3d 1151 , 1153 [2013], lv denied 22 NY3d 1015 [2013]).

2014Under the professional reliability exception to the hearsay rule, an expert may “provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Drey fuss, 6 NY3d 636, 648 [2006]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; compare Matter of Dakota F. [Angela F.], 110 AD3d 1151 , 1153 [2013], lv denied 22 NY3d 1015 [2013]).

2015Although neither of these individuals testified at trial, the professional reliability exception to the hearsay rule permits an expert witness to rely upon out-of-court information that would otherwise be inadmissible “if it is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013]). “[A] prerequisite to admission of such out-of-court material is a showing by the propo

2013Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay “if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citation omitted]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; O’Brien v Mbugua, 49 AD3d 937, 938 [2008]).

2013Auth., 63 NY2d 723, 725-726 [1984], quoting People v Sugden, 35 NY2d 453, 460 [1974]).

2013Auth., 63 NY2d 723, 725-726 [1984], quoting People v Sugden, 35 NY2d 453, 460 [1974]).

2012We reject respondent’s contention that the court abused its discretion in permitting petitioner to call respondent’s expert as a rebuttal witness (see generally Matter of Roth v S & H Grossinger, 284 AD2d 746, 748-749 [2001]), and the record belies the further contention of respondent that the court limited his cross-examination of petitioner’s expert concerning recidivism statistics related to the Static 99 assessment.

2012We reject respondent’s contention that the court abused its discretion in permitting petitioner to call respondent’s expert as a rebuttal witness (see generally Matter of Roth v S & H Grossinger, 284 AD2d 746, 748-749 [2001]), and the record belies the further contention of respondent that the court limited his cross-examination of petitioner’s expert concerning recidivism statistics related to the Static 99 assessment.

2015Although neither of these individuals testified at trial, the professional reliability exception to the hearsay rule permits an expert witness to rely upon out-of-court information that would otherwise be inadmissible “if it is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013]). “[A] prerequisite to admission of such out-of-court material is a showing by the propo

2011Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule “for the limited purpose of informing the [factfinder] of the basis of the experts’] opinion[s] and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 [internal quotation marks and citation omitted]; see People v Wlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006]).

2015Although neither of these individuals testified at trial, the professional reliability exception to the hearsay rule permits an expert witness to rely upon out-of-court information that would otherwise be inadmissible “if it is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013]). “[A] prerequisite to admission of such out-of-court material is a showing by the propo

2011Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule “for the limited purpose of informing the [factfinder] of the basis of the experts’] opinion[s] and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 [internal quotation marks and citation omitted]; see People v Wlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006]).

2015Although neither of these individuals testified at trial, the professional reliability exception to the hearsay rule permits an expert witness to rely upon out-of-court information that would otherwise be inadmissible “if it is of a kind accepted in the profession as reliable in forming a professional opinion” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citations omitted]; accord Matter of State of New York v Floyd Y., 22 NY3d 95, 107 [2013]). “[A] prerequisite to admission of such out-of-court material is a showing by the propo

2014(See generally Matter of State of New York v J.A., 21 Misc 3d 806 [Sup Ct, Bronx County 2008, Riviezzo, J.] [discussing the application of the professional reliability exception in article 10 cases].) In Floyd Y., the Court alluded to this established case law noting that “we have held that hearsay may play a role in an expert’s testimony because the expert may base an opinion on hearsay if it 'is of a kind accepted in the profession as reliable in forming a professional opinion’ ” ( 22 NY3d at 107 [citation omitted]).

2014Under the professional reliability exception to the hearsay rule, an expert may “provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Drey fuss, 6 NY3d 636, 648 [2006]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; compare Matter of Dakota F. [Angela F.], 110 AD3d 1151 , 1153 [2013], lv denied 22 NY3d 1015 [2013]).

2014Under the professional reliability exception to the hearsay rule, an expert may “provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Drey fuss, 6 NY3d 636, 648 [2006]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; compare Matter of Dakota F. [Angela F.], 110 AD3d 1151 , 1153 [2013], lv denied 22 NY3d 1015 [2013]).

2014Under the professional reliability exception to the hearsay rule, an expert may “provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Drey fuss, 6 NY3d 636, 648 [2006]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; compare Matter of Dakota F. [Angela F.], 110 AD3d 1151 , 1153 [2013], lv denied 22 NY3d 1015 [2013]).

2014Under the professional reliability exception to the hearsay rule, an expert may “provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Drey fuss, 6 NY3d 636, 648 [2006]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; compare Matter of Dakota F. [Angela F.], 110 AD3d 1151 , 1153 [2013], lv denied 22 NY3d 1015 [2013]).

2013Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay “if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citation omitted]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; O’Brien v Mbugua, 49 AD3d 937, 938 [2008]).

2013Pursuant to the professional reliability exception to the hearsay rule, an expert witness may rely on information that would otherwise constitute inadmissible hearsay “if it is of a kind accepted in the profession as reliable in forming a professional opinion or if it comes from a witness subject to full cross-examination on the trial” (People v Goldstein, 6 NY3d 119, 124-125 [2005], cert denied 547 US 1159 [2006] [internal quotation marks and citation omitted]; see Matter of Greene v Robarge, 104 AD3d 1073, 1074 [2013]; O’Brien v Mbugua, 49 AD3d 937, 938 [2008]).

2009Under these circumstances, the expert’s testimony that reports such as the laboratory report are generally relied upon by professionals in his field did not sufficiently establish the reliability of the laboratory report for the purposes of the professional reliability exception (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]).

2005To qualify as a valid exception under the professional reliability exception, the hearsay must be "of a kind accepted in the profession as reliable in forming a professional opinion" and "there must be independent evidence establishing the reliability of the out-of-court material" ( Hambsch v NYC Transit Authority , 63 NY2d 723 [1984]; Wagman v [*6]Bradshaw , [FN5] 292 AD2d 84 [2d Dept 2001]).

2019Matter of Angel SS. [Caroline SS.] , 129 AD3d 1119 , 1120 [3d Dept 2015]; Matter of Kaitlyn X. [Arthur X.] , 122 AD3d 1170 , 1171 [3d Dept 2014]).

2017As such, Liotta’s testimony was admissible under the professional reliability exception to the hearsay rule (see Matter of Angel SS. [Caroline SS.], 129 AD3d at 1120; Matter of Kaitlyn X. [Arthur X.], 122 AD3d 1170 [2014]).

2023Based on the testimony by OPWDD's expert that he relied on certain pedigree information and the diagnoses from other mental health professionals in the report to formulate his opinion, with no other means available to him related to respondent's testing during the developmental period in the 1960s and 1970s, [FN4] it was an error to not apply the professional reliability exception to such hearsay ( see Hinlicky v Dreyfuss , 6 NY3d 636, 648 [2006]; Delosh v Amyot , 186 AD3d 1793, 1796 [3d Dept 2020]).

2018Servs., Inc. , 117 AD3d 1421 , 1422 [4th Dept 2014], lv denied 23 NY3d 909 [2014]), and "provided that it does not constitute the sole or principal basis for the expert's opinion" ( Matter of State of New York v Fox , 79 AD3d 1782, 1783 [4th Dept 2010]; see Kendall v Amica Mut.

2016“Under the professional reliability exception to the hearsay rule, an expert may ‘provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in *1120 the profession’ ” (Matter of Kaitlyn X. [Arthur X.], 122 AD3d 1170 , 1171 [2014], quoting Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; see Matter of Anthony WW. [Michael WW.], 86 AD3d 654, 657 [2011], lv denied 17 NY3d 897 [2011]).

2016“Under the professional reliability exception to the hearsay rule, an expert may ‘provide opinion evidence based on otherwise inadmissible hearsay, provided it is demonstrated to be the type of material commonly relied on in *1120 the profession’ ” (Matter of Kaitlyn X. [Arthur X.], 122 AD3d 1170 , 1171 [2014], quoting Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; see Matter of Anthony WW. [Michael WW.], 86 AD3d 654, 657 [2011], lv denied 17 NY3d 897 [2011]).

2011While generally opinion evidence must be based on facts in the record or personally known to the witness (see Bednarz v Inn On Bridges St., Inc., 68 AD3d 1411, 1412 [2009]), under the professional reliability exception to the hearsay rule, an expert may provide an opinion based on otherwise inadmissible hearsay, “provided it is demonstrated to be the type of material commonly relied on in the profession” (Hinlicky v Dreyfuss, 6 NY3d 636, 648 [2006]; see Hambsch v New York City Tr.

2011Initially, expert testimony based upon hearsay is ordinarily admissible under the professional reliability rule “for the limited purpose of informing the [factfinder] of the basis of the experts’] opinion[s] and not for the truth of the matters related” (Matter of State of New York v Wilkes, 77 AD3d at 1453 [internal quotation marks and citation omitted]; see People v Wlasiuk, 32 AD3d 674, 680 [2006], lv dismissed 7 NY3d 871 [2006]).