foundational inquiry in New York

2013Parker Analysis The court turns next to examining the case under Parker , which asks “whether there is an appropriate foundation for the experts’ opinions, rather than whether the opinions are admissible under Frye.” (Parker at 447 ; see also Ratner at 72-73 .) “ ‘The Frye inquiry is separate and distinct from the admissibility question applied to all evidence.’ ” (Lugo at 62 , quoting Parker at 447 [other citations omitted].) Thus, “[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whet

2011Hence, where a plaintiffs qualified experts offer no novel test or technique, but intend to testify about a novel theory of causation, where such opinion is supported by generally accepted scientific methods, it is proper to proceed directly to the foundational inquiry of admissibility, which is whether the theory is properly founded on generally accepted scientific methods or principles (see Parker v Mobil Oil Corp., 7 NY3d at 447 [explaining that because “(t)here is no particular novel methodology at issue for which the Court needs to determine whether there is general acceptance . . . the i

2013Parker Analysis The court turns next to examining the case under Parker , which asks “whether there is an appropriate foundation for the experts’ opinions, rather than whether the opinions are admissible under Frye.” (Parker at 447 ; see also Ratner at 72-73 .) “ ‘The Frye inquiry is separate and distinct from the admissibility question applied to all evidence.’ ” (Lugo at 62 , quoting Parker at 447 [other citations omitted].) Thus, “[t]he focus moves from the general reliability concerns of Frye to the specific reliability of the procedures followed to generate the evidence proffered and whet

2008Although the Frye inquiry and the foundational inquiry are distinct, they may proceed simultaneously (see People v Wesley, 83 NY2d at 436 n 2 [Kaye, Ch.

2008Although “the scientific reliability of breathalyzers in general is no longer open to question” (People v Mertz, 68 NY2d 136, 148 [1986]), the People are required, as a foundational requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law § 1192, to introduce the “evidence from which the trier of fact could reasonably conclude, inter alia, that the testing device was in proper working order at the time the test was administered to the defendant” (People v Freeland, 68 NY2d 699, 700 [1986]).

1994We disagree with the conclusion of the court in People v Castro ( 144 Misc 2d 956, 959 ) that the foundational inquiry is part of a special "DNA Frye test.” Our cases have always required a foundational inquiry before scientific evidence can be admitted (see, e.g., People v Middleton, 54 NY2d, at 45 , supra), even after a particular technique has passed out of the "twilight zone” of "novel” evidence that is the subject of Frye and is judicially noticed as reliable (see, People v Knight, 72 NY2d 481, 487 [radar speed detection]; People v Campbell, 73 NY2d 481, 485 [blood alcohol content test];

2008Although “the scientific reliability of breathalyzers in general is no longer open to question” (People v Mertz, 68 NY2d 136, 148 [1986]), the People are required, as a foundational requirement for the admission of breathalyzer test results in a prosecution under Vehicle and Traffic Law § 1192, to introduce the “evidence from which the trier of fact could reasonably conclude, inter alia, that the testing device was in proper working order at the time the test was administered to the defendant” (People v Freeland, 68 NY2d 699, 700 [1986]).

1994We disagree with the conclusion of the court in People v Castro ( 144 Misc 2d 956, 959 ) that the foundational inquiry is part of a special "DNA Frye test.” Our cases have always required a foundational inquiry before scientific evidence can be admitted (see, e.g., People v Middleton, 54 NY2d, at 45 , supra), even after a particular technique has passed out of the "twilight zone” of "novel” evidence that is the subject of Frye and is judicially noticed as reliable (see, People v Knight, 72 NY2d 481, 487 [radar speed detection]; People v Campbell, 73 NY2d 481, 485 [blood alcohol content test];

1996As indicated by the Fourth Department in People v Garneau ( 120 AD2d 112, 115 [1986]): "It is well settled that as a foundational requirement for the admission of breathalyzer test results, evidence must be introduced both that the breathalyzer was in proper working condition when the test was given to defendant, and that the chemicals used in the test were of the proper kind and in the proper proportion * * * Out of practical necessity, the foundational requirement may be met by documentary proof.

1986Moreover, with relation to the admission of breathalyzer test results the only foundational requirement is that "evidence must be introduced both that the breathalyzer was in proper working condition when the test was given to defendant, and that the chemicals used in the test were of the proper kind and in the proper proportion” (People v Garneau, 120 AD2d 112,115 ).

2024Rather, it argues that: (1) Kurlan’s general causation opinion is unsupported by any clinical or epidemiological data or peer reviewed studies, and is instead based solely on a handful of anecdotal case reports and post-market adverse event reports, which is not a generally accepted methodology in the scientific community for establishing causation; and (2) his specific causation opinion is also not founded on a generally accepted methodology because he disregarded facts and medical evidence in the record and failed to rule out alternative causes for the plaintiff’s condition. “[W]here [as her

2011Hence, where a plaintiffs qualified experts offer no novel test or technique, but intend to testify about a novel theory of causation, where such opinion is supported by generally accepted scientific methods, it is proper to proceed directly to the foundational inquiry of admissibility, which is whether the theory is properly founded on generally accepted scientific methods or principles (see Parker v Mobil Oil Corp., 7 NY3d at 447 [explaining that because “(t)here is no particular novel methodology at issue for which the Court needs to determine whether there is general acceptance . . . the i

1994The genome of an individual does not vary from cell to cell, except in sperm and egg cells, which have half the complement of DNA present in other body cells. [13] The differences in alleles is explained by the difference in the ways the base pairs (A-T, T-A, C-G, G-C) arrange themselves along the DNA molecule. [14] Identical twins have the same DNA composition. [1] Even the new Federal test articulated in Daubert v Merrell Dow Pharms . ( 509 US ___ , 113 S Ct 2786 ) would require proof of reliability of novel scientific evidence. [2] We disagree with the conclusion of the court in People v Ca

1994We disagree with the conclusion of the court in People v Castro ( 144 Misc 2d 956, 959 ) that the foundational inquiry is part of a special "DNA Frye test.” Our cases have always required a foundational inquiry before scientific evidence can be admitted (see, e.g., People v Middleton, 54 NY2d, at 45 , supra), even after a particular technique has passed out of the "twilight zone” of "novel” evidence that is the subject of Frye and is judicially noticed as reliable (see, People v Knight, 72 NY2d 481, 487 [radar speed detection]; People v Campbell, 73 NY2d 481, 485 [blood alcohol content test];

2025Co. v Eisner , 276 NY 121, 125 [1937]).

2025Co. v Eisner , 276 NY 121, 125 [1937]).

2025A contrary conclusion would violate the foundational principle that even an unconditional guarantor "is only liable upon the noncompliance of the principal obligor." ( Cooperatieve Centrale Raiffeisen-Boerenleenbank, B.A., "Rabobank Intl.," NY Branch v Navarro , 25 NY3d 485, 495 [2015].) II.

2024Mancuso , 86 F3d at 296 ["the sole question remaining is whether suit in federal court will be an affront to the dignity of New York State"]; Hutto , 773 F3d at 546 [analyzing factors to determine "whether allowing suit against a state entity would offend a State's dignity"]).

2024Mancuso , 86 F3d at 296 ["the sole question remaining is whether suit in federal court will be an affront to the dignity of New York State"]; Hutto , 773 F3d at 546 [analyzing factors to determine "whether allowing suit against a state entity would offend a State's dignity"]).

2024Rather, it argues that: (1) Kurlan’s general causation opinion is unsupported by any clinical or epidemiological data or peer reviewed studies, and is instead based solely on a handful of anecdotal case reports and post-market adverse event reports, which is not a generally accepted methodology in the scientific community for establishing causation; and (2) his specific causation opinion is also not founded on a generally accepted methodology because he disregarded facts and medical evidence in the record and failed to rule out alternative causes for the plaintiff’s condition. “[W]here [as her

2024Moreover, the hypothetical is irreconcilable with the foundational principle of our Federalism: that, by entering into the Union, the States agreed to throw their lot in together and "no longer relate to each other solely as foreign sovereigns" ( Hyatt III , 587 US at 245).

2024Moreover, the hypothetical is irreconcilable with the foundational principle of our Federalism: that, by entering into the Union, the States agreed to throw their lot in together and "no longer relate to each other solely as foreign sovereigns" ( Hyatt III , 587 US at 245).

2024Mancuso , 86 F3d at 296 ["the sole question remaining is whether suit in federal court will be an affront to the dignity of New York State"]; Hutto , 773 F3d at 546 [analyzing factors to determine "whether allowing suit against a state entity would offend a State's dignity"]).

2024Mancuso , 86 F3d at 296 ["the sole question remaining is whether suit in federal court will be an affront to the dignity of New York State"]; Hutto , 773 F3d at 546 [analyzing factors to determine "whether allowing suit against a state entity would offend a State's dignity"]).

2015Nor was Woods able to "presently testify that the record correctly represented his knowledge and recollection when made" ( Taylor , 80 NY2d at 8 ; see also People v Fields , 89 AD3d 861 [2d Dept 2011], lv denied 18 NY3d 882 [2012]).

2015Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” (Taylor, 80 NY2d at 8 ; see also People v Fields, 89 AD3d 861 [2d Dept 2011], lv denied 18 NY3d 882 [2012]).

2015In People v Tyrell ( 22 NY3d 359 [2013]) we addressed a problematic practice, which although perhaps not as pervasive as the People claim in their Conceicao retroactivity argument, had become troublingly recurrent, particularly in criminal courts handling non-felony matters: guilty pleas were being elicited in a most perfunctory way, often leaving no affirmative record of the foundational waiver of constitutionally guaranteed trial rights — commonly referred to as the Boykin rights — essential to the validity of any plea-based conviction (see Boykin v Alabama, 395 US 238, 243 [1969]).

2015Nor was Woods able to "presently testify that the record correctly represented his knowledge and recollection when made" ( Taylor , 80 NY2d at 8 ; see also People v Fields , 89 AD3d 861 [2d Dept 2011], lv denied 18 NY3d 882 [2012]).

2015Nor was Woods able to “presently testify that the record correctly represented his knowledge and recollection when made” (Taylor, 80 NY2d at 8 ; see also People v Fields, 89 AD3d 861 [2d Dept 2011], lv denied 18 NY3d 882 [2012]).

2011Hence, where a plaintiffs qualified experts offer no novel test or technique, but intend to testify about a novel theory of causation, where such opinion is supported by generally accepted scientific methods, it is proper to proceed directly to the foundational inquiry of admissibility, which is whether the theory is properly founded on generally accepted scientific methods or principles (see Parker v Mobil Oil Corp., 7 NY3d at 447 [explaining that because “(t)here is no particular novel methodology at issue for which the Court needs to determine whether there is general acceptance . . . the i

2008Furthermore, “other avenues of challenge to the accuracy of the breathalyzer test are available” to a defendant, and a “defendant may not be denied discovery which prevents him [or her] from challenging the reliability and accuracy of the machine” (People v Alvarez, 70 NY2d 375, 380 [1987], citing People v English, 103 AD2d 979 [1984]).

2006Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability and then conduct “only a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester’s qualifications” (People v Gallup, 302 AD2d 681, 684 [2003], lv denied 100 NY2d 594 [2003]; see People v Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005]).

2006Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability and then conduct “only a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester’s qualifications” (People v Gallup, 302 AD2d 681, 684 [2003], lv denied 100 NY2d 594 [2003]; see People v Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005]).

2006Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability and then conduct “only a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester’s qualifications” (People v Gallup, 302 AD2d 681, 684 [2003], lv denied 100 NY2d 594 [2003]; see People v Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005]).

2006Such tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test’s acceptability and then conduct “only a foundational inquiry into whether the accepted techniques were actually employed in this case and the tester’s qualifications” (People v Gallup, 302 AD2d 681, 684 [2003], lv denied 100 NY2d 594 [2003]; see People v Grune, 12 AD3d 944, 945 [2004], lv denied 4 NY3d 831 [2005]).