| Caccioppoli v City of New York |
| 2008 NY Slip Op 04046 [50 AD3d 1079] |
| April 29, 2008 |
| Appellate Division, Second Department |
| Frank Caccioppoli et al., Appellants, v City of New York etal., Respondents, et al., Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Dona B.Morris of counsel), for respondents. Hawkins, Feretic & Daly, LLC, New York, N.Y. (Sean M. Prendergast of counsel), fordefendant Ilyavu Kikirov.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of a judgment of the Supreme Court, Kings County (Levine, J.), enteredOctober 10, 2006, as, upon a jury verdict, is in favor of the defendants City of New York andOronzo N. Candido and against them, in effect, dismissing the complaint insofar as assertedagainst them.
Ordered that the judgment is reversed insofar as appealed from, on the law and in theexercise of discretion, the complaint is reinstated against the respondents, and the matter isremitted to the Supreme Court, Kings County, for a new trial against the respondents on theissues of causation and damages, with costs to abide the event.
The plaintiff Frank Caccioppoli (hereinafter the plaintiff) was a sanitation worker with theNew York City Department of Sanitation. On December 6, 1996 he was working as the "guideman" on an "easy pack" sanitation truck driven by his partner, the defendant Oronzo N. Candido.At the corner of 8th Street and 5th Avenue in Brooklyn, Candido failed to stop at a stop [*2]sign and collided with a car driving south on 5th Avenue. The rightfront bumper of the sanitation truck made contact with the front left wheel of the car, with a lightto medium impact.
Caccioppoli and his wife commenced this action, alleging, inter alia, that his knee wasinjured in the accident, resulting in permanent disability. After a trial, the jury found that Candidowas negligent, but that his negligence was not a proximate cause of the plaintiff's injuries.
The jury verdict was not against the weight of the evidence. Here, it was disputed whetherthe plaintiff's injuries were caused by the accident or were the result of a prior existing condition(cf. Browne v Pikula, 256 AD2d 1139 [1998]; Darrow v Lavancha, 169 AD2d965, 966 [1991]). Therefore, the jury's verdict finding that the accident was not a proximatecause of the plaintiff's injuries was based on a fair interpretation of the evidence (see Lolik vBig V Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129,134 [1985]).
However, the Supreme Court improvidently exercised its discretion in permitting thedefendants City of New York and Candido (hereinafter together the City defendants) to offer thetestimony of a radiologist, Dr. A. Robert Tantleff, over the plaintiffs' objection. Counsel for theCity defendants gave the plaintiffs notice pursuant to CPLR 3101 (d) of the doctor's testimonyone day before trial, and failed to show good cause for their last-minute retention of Tantleff(see Klatsky v Lewis, 268 AD2d 410, 411 [2000]). While the City defendants turned overTantleff's report soon after it was received, they offered no excuse for retaining him only twodays before trial. Further, the plaintiffs were prejudiced by the late notice. Tantleff testified thatthe magnetic resonance imaging films showed tears of knee cartilage attributable toosteoarthritis, a slow degenerative disease, rather than trauma. This was a new theory notpreviously disclosed, which the plaintiffs had no opportunity to prepare to rebut. "[The City][d]efendant[s'] inexcusably belated service on the very eve of trial of new CPLR 3101 (d)responses noticing new experts in support of newly raised defense theories cannot becountenanced" (Lissak v Cerabona,10 AD3d 308, 309 [2004]). This error was not harmless. Accordingly, the matter must beremitted to the Supreme Court, Kings County, for a new trial on the issues of causation anddamages.
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Lifson, Florio andChambers, JJ., concur.