| Crooms v Sauer Bros. Inc. |
| 2008 NY Slip Op 01823 [48 AD3d 380] |
| February 28, 2008 |
| Appellate Division, First Department |
| James Crooms, Appellant, v Sauer Bros. Inc.,Respondent. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York City (Harry Steinberg of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered September12, 2006, after a jury trial, awarding plaintiff damages of $75,000 for past pain and suffering andnothing for future pain and suffering, unanimously affirmed, without costs.
In 2002, plaintiff, an unemployed former transit worker on disability, allegedly fell in thebackyard of his building, owned by defendant, when he stepped into a hole, lost his balance, andstruck his ankle on a rock the size of a bowling ball. He suffered a fracture of the fifth metatarsalbone on his left foot, and developed a deep vein thrombosis from the cast that was applied. Afterhospitalization for a week, he wore a cam-walker for another two months. Plaintiff alleges that healso suffered consequent injuries to his left ankle and spine, requiring surgery in 2004 and 2005,respectively.
At trial, plaintiff was cross-examined regarding an affirmation he had signed in connectionwith an auto accident involving his family. The affirmation suggested that plaintiff had been inthe car, but on cross-examination he stated that the affirmation was erroneous. Plaintiff sought tooffer into evidence a police report and other documents to bolster his testimony that he had notbeen in the car, but the court denied the request on the ground that the issue was collateral andrelevant only to credibility. At a later point in the trial, a report of defendant's expert suggestedthat plaintiff might indeed have been in an accident subsequent to the one at issue.
Plaintiff challenges the verdict on the ground that the court should have permitted him toprove that he had not been in a later auto accident, to avoid speculation by the jury on thiscollateral event. He also asserts that the verdict was inconsistent, against the weight of thecredible evidence, and deviated materially from reasonable compensation.
A collateral matter is one that has no direct bearing on any issue in the case, other thancredibility. The trial court is invested with broad discretion in restricting inquiry into suchmatters (see Coopersmith v Gold, 89 NY2d 957 [1997]). The record reflects that plaintiffwas asked about the affirmation in the context of a series of questions designed to challenge hiscredibility. At no point did defense counsel suggest plaintiff's alleged injuries were theconsequence of a later accident, and in summation defense counsel stated that the only relevanceof the affirmation was the fact it was false and plaintiff signed it. Accordingly, the court properly[*2]refused to admit extrinsic evidence regarding the subsequentauto accident.
The record also reflects sufficient evidence to support the verdict and the adequacy of theaward. Based on the report of defendant's expert, portions of which were read into the record,plaintiff made a full recovery, had a full range of motion and normal alignment, and the softtissue and bony structure of the foot were normal, with no disability or permanent injury as aresult of the subject accident. Plaintiff's experts disagreed.
In evaluating conflicting testimony of expert witnesses, the jury is entitled to accept or rejectan expert's testimony in whole or in part (Mejia v JMM Audubon, 1 AD3d 261 [2003]). If the jury crediteddefendant's expert, there is no inconsistency in the award of damages for past pain and sufferingbut none for future pain and suffering, in light of plaintiff's full recovery.
Defendant's expert also opined that the surgery on plaintiff's ankle in 2004 and his back in2005 were consequences of unrelated medical problems. The award of $75,000 for a fracturedmetatarsal and thrombosis does not deviate materially from reasonable compensation (see Brandwein v New York City Tr.Auth., 14 AD3d 396 [2005]). Concur—Mazzarelli, J.P., Andrias, Saxe, Gonzalezand Sweeny, JJ.