| Garritano v Garritano |
| 2009 NY Slip Op 03692 [62 AD3d 657] |
| May 5, 2009 |
| Appellate Division, Second Department |
| Deborah DiStefano Garritano, Respondent, v RalphGarritano, Appellant. |
—[*1] Robert A. Bruno, Hauppauge, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from a judgmentof the Supreme Court, Suffolk County (Blydenburgh, J.), entered November 20, 2006, which,upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $363,000.
Ordered that the judgment is affirmed, with costs.
Approximately one week before the trial was scheduled to begin on March 6, 2006, theattorney for the defendant moved for leave to withdraw as his attorney. The Supreme Courtstayed the action pending resolution of the motion and, in an order dated July 13, 2006, grantedthe motion and scheduled trial to begin on August 22, 2006. The defendant and his prior attorneywere in communication regarding the case throughout the time the action was stayed as well asafter the court granted the motion. Thus, the defendant was aware of the motion of his attorney tobe relieved for more than four months while the matter was stayed, and additionally had amplenotice of the commencement of trial following the withdrawal of counsel.
The defendant, pro se, appeared for and participated in jury selection on August 22, 2006.Two days later, on August 24, 2006, which was scheduled as the first day of trial, the defendant'sprior attorney appeared in court and made an application to take the defendant's case "back,"stating that the defendant would concede liability if the court agreed to adjourn the trial from thatday, a Thursday, until the afternoon of the following Tuesday, August 29, 2006, to accommodatethe attorney's planned vacation day for the next day, Friday, and a conference he was scheduledto [*2]attend before a different judge that Tuesday morning. Theplaintiff had scheduled expert witnesses to testify that afternoon and Monday morning inexpectation of commencing trial.
Under the circumstances of this case, the court did not improvidently exercise its discretionin denying the application of the defendant's prior attorney (see Matter of Anthony M.,63 NY2d 270, 283 [1984]; Cabral vCabral, 35 AD3d 779, 779 [2006]; SKR Design Group, Inc. v Avidon, 32 AD3d 697, 699 [2006];Matter of Mera v Tax Appeals Trib. of State of N.Y., 204 AD2d 818, 820 [1994]), andthe defendant was not deprived of the representation of counsel thereby (see Matter ofBaywood Elec. Corp. v New York State Dept. of Labor, 232 AD2d 553, 554 [1996]).
Moreover, despite the defendant's claims to the contrary, the Supreme Court did not err inadmitting into evidence the medical testimony and records of the plaintiff's experts, since theyrelied upon the subject records in the plaintiff's diagnosis and treatment (see Murray v Weisenfeld, 37 AD3d432, 433-434 [2007]; Bruce-Bishop v Jafar, 302 AD2d 345 [2003]; Cohn vHaddad, 244 AD2d 519, 519-520 [1997]; Freeman v Kirkland, 184 AD2d 331[1992]). Nor did the Supreme Court err in allowing the plaintiff to refer, during her trialtestimony, to the circumstances and specifics of the instant assault (see Kinkela vIncorporated Vil. of Mineola, 306 AD2d 382, 383 [2003], quoting Moran v InternationalPlaytex, 103 AD2d 375, 376 [1984] ["(w)hen punitive damages are sought, allcircumstances immediately connected with the transaction tending to exhibit or explain adefendant's motivation for the conduct in question are admissible in evidence"]; Levine vAbergel, 127 AD2d 822, 824-825 [1987], quoting Voltz v Blackmar, 64 NY 440,445 [1876] ["(w)here exemplary or punitive damages are claimed, all the circumstancesimmediately connected with the transaction, tending to exhibit or explain the motive of thedefendant, are admissible in evidence"]).
Finally, the Supreme Court did not err when it gave further requested instructions to thedeliberating jury in the defendant's absence. "The proper practice, and it is wise and salutary, isthat further instructions requested by a jury after it has retired should be given by the justicepresiding to the jury in open court when counsel for both sides are present or have been affordedthe opportunity of being present, unless counsel on both sides consent to written instructions orto the requested reading of the record or parts thereof by the stenographer in the jury room"(Blaha v Lettmoden, 83 AD2d 619, 621 [1981], quoting Gundersen v All Am.Commerce Corp., 275 App Div 572, 573 [1949]). That way, "each party knows exactly whatis being communicated to the jury and has an opportunity to note any objections, exceptions orfurther request, unless consent is given" (Brown v Moodie, 116 AD2d 980, 982 [1986],quoting Jones v S. T. Palay Textile Corp., 279 App Div 337, 339 [1952]). Nonetheless,"such an improper communication in a civil case does not require a new trial 'unless prejudice toeither party's case resulted therefrom' " (Maione v Pindyck, 32 AD3d 827, 828 [2006], quotingSilverman v New Rochelle Hosp., 98 AD2d 774 [1983]).
Here, the court waited until the time the late-arriving defendant had represented he wouldarrive before communicating to the jury in the defendant's absence. Additionally, the court hadadvised the defendant that, "if he wasn't here by 11:15, I was going to go out and address thejury." Thus, the defendant was "afforded the opportunity of being present" (Blaha vLettmoden, 83 AD2d at 621). Moreover, the court detailed to the defendant precisely whathad transpired in his absence when he finally arrived at court that day, and thus provided himwith an opportunity to voice "any objections, exceptions or further request" (Brown vMoodie, 116 AD2d at 982 [internal quotation marks omitted]). Accordingly, since thedefendant was not prejudiced, he is not entitled to a new trial (see Maione v Pindyck, 32AD3d at 828). Mastro, J.P., Skelos, Santucci and Hall, JJ., concur.