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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-----------------------------------------------------------)(
`HYUNG SUN KIM
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`Plaintiff,
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`-against-
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`LEO RING, FRANK RING, and MICHAEL RING,
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`Defendants,
`-----------------------------------------------------------)(
`LEO RING, FRANK RING, and MICHAEL RING
`Third Party Plaintiffs,
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`-against-
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`DA VID & YOUNG CO., INC,
`Third Party Defendant,
`-----------------------------------------------------------)(
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`ROBERT P. PATTERSON, JR., U.S.D.J.
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`I. Introduction
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`OPINION & ORDER
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`01 CV 1311 (RPP)
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`On May 18, 2011, Defendants Leo Ring, Frank Ring, and Michael Ring ("Ring
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`Defendants" or "Defendants") moved this court to preclude, or in the alternative, limit the
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`testimony of Plaintiffs new expert, Harold Krongelb-Heimer, P.E. ("Mr. Krongelb-Heimer").
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`On May 19,2011, Third Party Defendant David & Young Co., Inc. ("Third Party Defendant" or
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`"David & Young") moved to preclude the proposed testimony of Mr. Krongelb-Heimer.
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`For the following reasons, Defendant's motion is granted in part and the Third Party
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`Defendant's motion is denied.
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`II. Background
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`On June 22, 2003, Plaintiffs expert, Richard Heimer, P.E., CMr. Heimer") conducted an
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`inspection of the premises at issue in this case, 15 West 27th Street, New York. He provided a
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`report of findings to Plaintiffs counsel by letter dated September 22,2003. By order dated
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`Case 1:01-cv-01311-RPP Document 77 Filed 05/20/11 Page 2 of 5
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`November 1 2003, Judge Batts, who formerly presided over the instant action, directed that
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`discovery be completed within forty-five days. No expert disclosure was provided to Defendants
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`until October 14, 2004, after the close of discovery. On this date, counsel was presented with an
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`affidavit ofMr. Heimer dated October 14, 2004 and a report dated September 22, 2003.
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`This case was marked ready for possible imminent trial assignment by Judge Batts on
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`August 25,2010 and was assigned to Judge Conti's trial calendar on September 17,2010. The
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`case was re-assigned to this Judge on April 7, 2011. On that date, this Court set a trial date of
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`May 23, 2011.
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`On May 10,2011, the Court heard argument on Defendant's motion in limine to exclude
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`or limit the testimony of Mr. Heimer as an expert witness. The Defendants and Third Party
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`Defendants argued in part, that because the expert was not disclosed in a timely manner and
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`because they were not given the opportunity to depose him, his testimony at trial should be
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`precluded. The Court denied this motion and ordered Plaintiffs counsel to produce Mr. Heimer
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`for deposition by the Defendant and Third Party Defendant. The parties stipulated that Plaintiffs
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`counsel would produce Mr. Heimer for deposition on May 16, 20 II.
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`On May 1 2011, Plaintiff s counsel informed the Defendant and Third Party Defendant
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`that Mr. Heimer had died approximately one and a half years ago. By letter dated May 12, 2011,
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`Plaintiffs counsel advised the Court and counsel that his expert had died and that he now wished
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`to substitute a new expert, Harold Krongelb-Heimer ("Mr. Krongelb-Heimer"), P.E., for use at
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`trial. Mr. Krongelb-Heimer is the son-in-law ofMr. Heimer. The Court directed Plaintiffto have
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`his new expert prepare a report that was limited in scope to the conclusions reached by Mr.
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`Heimer's 2003 report, and to provide it to counsel in advance of the deposition ofMr. Krongelb
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`Heimer on May 16,2011.
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`Case 1:01-cv-01311-RPP Document 77 Filed 05/20/11 Page 3 of 5
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`On May 16,2011, Plaintiirs counsel served the report of Mr. Krongelb-Heimer to the
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`Court and counsel. This report asserted claims under different New York City Administrative
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`Code provisions and under difJerent theories than those claimed to be at issue in Plaintiffs prior
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`expert disclosure.
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`III. Discussion
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`Plaintiffs counsel was explicitly directed to have Mr. Krongelb-Heimer prepare a new
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`report which was limited in scope to Mr. Heimer's conclusions in his 2003 report. In violation of
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`this directive, Mr. Krongelb-Heimer's report expounds new theories of liability, includes
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`references and analysis regarding four additional sections of the New York City Administrative
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`Code, and cites to some 95 building violations, including two violations in 2000 (two years after
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`Plaintiffs injury), in corning to his conclusion. As such, Mr. Krongelb-Heimer's testimony at
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`trial on this new information is hereby precluded. Mr. Krongelb-Heimer's testimony at trial shall
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`be limited to the conclusions reached by his father-in-law, Mr. Heimer in his 2003 report
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`namely that "by not maintaining the premises in a safe manner and by not prohibiting access to
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`the area where Mr. Kim fell, the owner was not maintaining his building in a manner proscribed
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`by the New York City Building Code [Sections 27-127 and 27-128]." (Expert Report of Richard
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`Heimer dated Sept. 22, 2003 at 4.)
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`IV. Conclusion
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`For the foregoing reasons, Defendant's motion to limit Mr. Krongelb-Heimer's testimony
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`at trial is granted. Defendant and Third Party Defendant's motion to preclude Mr. Krongelb
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`Heimer from testifying at trial is denied for the reasons previously stated by this Court at the
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`telephone conference held on May 12, 2011.
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`Case 1:01-cv-01311-RPP Document 77 Filed 05/20/11 Page 4 of 5
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`SO ORDERED
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`Dated: New Yor,k New York .
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`May ~··O, 2011
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`C;J.ir&~
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`t
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`Robert P Patterson, Jr..
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`U.S.D.l.
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`Case 1:01-cv-01311-RPP Document 77 Filed 05/20/11 Page 5 of 5
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`Copies ofthis Order sent to:
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`Counsel for the Plaintiff
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`Daniel D. Kim
`Law Offices of Daniel D. Kim
`350 Fifth Ave. Suite 4610
`New York, NY 10118
`(212)643-0090
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`Coun~el for the Defendants/Third Party Plaintiffs
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`Patrick Joseph Crowe
`Crowe & Fassberg P.C
`3000 Marcus A venue Suite 1 E5
`Lake Success, NY 11042
`(516)-570-4012
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`Counsel for Third Party Defendant
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`Patrick J. Cooney
`Ahmuty, Demers & McManus, Esqs.
`200 LV. Willets Road
`Albertson, New York, 11507
`(516)535-2411
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