| Zito v City of New York |
| 2008 NY Slip Op 02836 [49 AD3d 872] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Michael Zito et al., Appellants, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for respondent City of New York. Koehler & Isaacs, LLP, New York, N.Y. (Leslie H. Ben-Zvi of counsel), for respondentHubert Desmangles.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appealfrom a judgment of the Supreme Court, Kings County (F. Rivera, J.), dated August 1, 2006,which, upon a jury verdict finding the plaintiff Michael Zito 85% at fault and the defendants 15%at fault in the happening of the incident, and awarding the plaintiff Michael Zito damages in thesums of only $450,000 for past pain and suffering, $74,000 for past medical expenses, and nodamages for future pain and suffering, is in their favor and against the defendants in the principalsum of only $78,600 (15% of $524,000).
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new trial, with costs to abide the event.
In June 1998 the then-infant plaintiff Michael Zito (hereinafter the plaintiff) sustainedinjuries when he was shot by the defendant Hubert Desmangles, an off-duty New York CityCorrections Officer. The plaintiff commenced this lawsuit against Desmangles and the City of[*2]New York alleging, inter alia, negligence and civil rightsviolations.
At trial, the plaintiff testified that on the night of the shooting, he had approached a cab onthe street seeking to purchase a cigarette from the driver. However, the driver refused his requestand drove away. The plaintiff further stated that later that night, while he was walking home, thecab returned and a passenger exited the vehicle and shot him in the back. Two other witnesses,who were friends of the plaintiff and had been with him on the night in question, also testifiedthat the plaintiff was shot in the back.
The defendant Hubert Desmangles testified that the plaintiff approached the cab in which hewas a passenger and allegedly stated, "[g]ive me your money or me and my boys will shoot you,"whereupon the cab fled. However, Desmangles ordered the driver to return to the scene, which hedid. Desmangles then exited the cab in order to use a nearby pay phone when he saw four or fivemales, including the plaintiff, accelerating their pace walk toward him. Desmangles testified thatone of the men said, "let's get him," and the group accelerated its pace toward him. At that point,Desmangles drew his gun and fired at the plaintiff. Desmangles also testified that he shot theplaintiff in the stomach when he was about eight feet away.
The jury found both Desmangles and the plaintiff to be negligent and found Desmangles 15%at fault and the plaintiff 85% at fault in the happening of the incident. The jury awarded theplaintiff the sum of $450,000 for past pain and suffering, and $74,000 for past medical expenses,but no damages for future pain and suffering. On appeal, the plaintiff argues, inter alia, that thecourt erred in failing to redact part of his hospital record which indicated that the bullet enteredthrough the front of his body and exited his back, that he was entitled to a missing witness chargewith respect to the defendants' ballistics expert, and that the jury verdict was against the weightof the evidence with respect to the apportionment of fault.
We agree with the plaintiff's contention that it was error to admit into evidence the statement,contained in the history portion of the plaintiff's hospital records, that the bullet entered throughthe front of his body. Inasmuch as the record does not establish whether the statement wasgermane to either diagnosis or treatment, it constituted hearsay and should have been redactedfrom the record (see People v Townsley, 240 AD2d 955 [1997]; Wilson v Bodian,130 AD2d 221 [1987]).
The court also erred in denying the plaintiff's request for a missing witness charge regardingthe defendants' ballistics expert. A party is entitled to a missing witness charge when the partyestablishes that "an uncalled witness possessing information on a material issue would beexpected to provide noncumulative testimony in favor of the opposing party and is under thecontrol of and available to that party" (Jackson v County of Sullivan, 232 AD2d 954, 955[1996]; see Zeeck v Melina Taxi Co., 177 AD2d 692 [1991]; Kupfer v Dalton,169 AD2d 819 [1991]). Here, it is undisputed that the ballistics expert was available andunder the defendants' control, and the charge would have allowed the jury to infer that theexpert's testimony would not have contradicted the evidence offered by the plaintiff with respectto the direction of the bullet, which was a central issue in the case (see Goverski v Miller,282 AD2d 789 [2001]).
We further conclude that the verdict was against the weight of the evidence in that the juryfailed to award any future damages. The standard for determining whether a jury verdict isagainst the weight of the evidence is whether the evidence so preponderated in favor of themovant that the verdict could not have been reached on any fair interpretation of the evidence(see Lolik v [*3]Big V Supermarkets, 86 NY2d 744, 746[1995]; Figueroa v Sliwowski, 43 AD3d 858 [2007]; Travelers Indem. Co. v S.T.S.Fire Prevention, 41 AD3d 835 [2007]). Where the verdict can be reconciled with areasonable view of the evidence, the successful party is entitled to the presumption that the juryadopted that view (see Torres v Esaian, 5 AD3d 670, 671 [2004]). Here, the evidence ofthe permanent injuries sustained by the plaintiff as a result of the shooting, which requiredmultiple surgical interventions, was undisputed. Accordingly, a fair interpretation of suchevidence does not support the jury's conclusion that the plaintiff was not entitled to any damagesfor future pain and suffering. Instead, it appears that the jury improperly arrived at a compromiseverdict (see Figliomeni v Board of Educ. of City School Dist. of Syracuse, 38 NY2d 178[1975]; Califano v Automotive Rentals, 293 AD2d 436, 437 [2002]; Rivera v City ofNew York, 253 AD2d 597, 600 [1998]).
For these reasons, we conclude that the judgment should be reversed and the matter remittedfor a new trial. In light of this determination, it is unnecessary to reach the plaintiff's remainingcontentions. Ritter, J.P., Santucci, Covello and Carni, JJ., concur.