| Huff v Rodriguez |
| 2009 NY Slip Op 05813 [64 AD3d 1221] |
| July 10, 2009 |
| Appellate Division, Fourth Department |
| Yvette Huff, Appellant, v Anita L. Rodriguez, Formerly Known asAnita L. Rosario, et al., Respondents. (Appeal No. 1.) |
—[*1] Kenney Shelton Liptak Nowak LLP, Buffalo (Patrick S. Kenney of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), enteredApril 23, 2008 in a personal injury action. The judgment dismissed the complaint upon a juryverdict in favor of defendants on liability.
It is hereby ordered that the judgment so appealed from is reversed on the law without costs,the complaint is reinstated, and a new trial is granted on liability.
Memorandum: As we noted when this case previously was before us on appeal (Huff v Rodriguez, 45 AD3d 1430[2007]), plaintiff commenced this action seeking damages for injuries she sustained in a motorvehicle accident while she was a passenger in a vehicle owned by defendant Enrique Rodriguezand operated by Anita L. Rodriguez, formerly known as Anita L. Rosario (defendant). Followinga trial, the jury found defendant 100% liable for the accident and awarded plaintiff damages. Onthe prior appeal, we reversed the amended judgment and granted defendants' post-trial motion inpart by, inter alia, setting aside the verdict on liability. We granted a new trial on liability andspecified that, in the event that the new trial resulted in a finding of liability against defendants, anew trial on specified categories of damages was also granted unless plaintiff stipulated toreduce the award of damages for those categories to certain amounts (id.). Plaintiffstipulated to the reduction in damages and, following a new trial on liability, the jury found infavor of defendants. In appeal No. 1, plaintiff appeals from the judgment entered upon that juryverdict and, in appeal No. 2, plaintiff appeals from the order settling the record in appeal No. 1.
We note at the outset that we reject defendants' contention that all but one of plaintiff'scontentions are not preserved for our review inasmuch as they were not raised in plaintiff'spost-trial motion following the new trial on liability (see CPLR 4404 [a]). All ofplaintiff's contentions on appeal are properly before us, either because they were raised in thepost-trial motion or during the trial (see Rochester Gas & Elec. Corp. v State of NewYork, 225 AD2d [*2]1047 [1996]).
Contrary to plaintiff's contention, Supreme Court did not abuse its discretion in granting amistrial following the opening statement of plaintiff's attorney (see generally Harris v Villageof E. Hills, 41 NY2d 446, 451 [1977]). Plaintiff's attorney stated therein that Roger M.Harriss, Jr., the driver of the vehicle that collided with the vehicle in which plaintiff was apassenger, would not be present at the trial because he was "serving a military tour in Iraq." Inseeking a mistrial based on that statement, defendants' attorney contended that Harriss had in factreturned from Iraq. According to plaintiff's attorney, he had been informed by family members ofHarriss that Harriss "[was] away, he [was] in military confinement," but he could not verify thatHarriss was presently in Iraq. The court did not abuse its discretion in granting the mistrial onthe ground of potential prejudice to defendants, i.e., "by indicating that . . .[Harriss] is an Iraq veteran and [the jury] won't be concentrating on the case." We note in anyevent that defendants' attorney stated that he would not question the absence of Harriss at thesecond of the new trials, which began the following day, and thus there was no need forplaintiff's attorney to explain the reason for Harriss's absence at that second new trial.
Contrary to plaintiff's further contention, the court properly allowed defendants' attorney tocross-examine a witness using the medical records of that witness. The cross-examinationconcerned medications that the witness was taking at the time of the accident, in order toestablish whether those medications affected her "ability to perceive and remember events" inconnection with the accident (Bivona v Nassau Ophthalmic Servs., 276 AD2d 455[2000]; see generally Badr v Hogan, 75 NY2d 629, 634-635 [1990]). Inasmuch as thosemedical records were not admitted in evidence, we reject plaintiff's sole contention in appeal No.2 that the court erred in refusing to include them in the record on appeal in appeal No. 1 (seeMatter of Gullo v Semon, 265 AD2d 656, 657 [1999]; cf. Fruin-Colnon Corp. v NiagaraFrontier Transp. Auth., 180 AD2d 222, 225, 234 [1992]). We further conclude that plaintifflacks standing to seek penalties based on the alleged violation of the witness's rights under theHealth Insurance Portability and Accountability Act of 1996 ([HIPAA] 42 USC § 1320det seq.).
Also contrary to plaintiff's contention, the court properly charged the jury pursuant to PJI1:55 and 2:26 inasmuch as both charges were supported by the evidence submitted to the jury.PJI 1:55 was properly charged because there was evidence at trial that Harriss apologized forhitting defendant's vehicle and stated that he had not seen the vehicle, and those statements couldbe deemed admissions against interest. In addition, PJI 2:26 was properly charged because theHarriss vehicle struck defendant's vehicle while it was stopped (see DiLillo v ReitmanBlacktop, 299 AD2d 517 [2002]; Barile v Lazzarini, 222 AD2d 635, 636 [1995]).
We agree with plaintiff, however, that comments made by defendants' attorney onsummation warrant reversal. One day before opening statements, defendants' attorneyacknowledged that he had received a report of plaintiff's accident reconstruction expertconcluding "that the sole proximate cause of the accident was the . . . action of[defendant]." Plaintiff did not call her expert at trial and, during his summation, defendants'attorney stated that plaintiff failed to call that expert "because his testimony would not support[plaintiff's] claim that . . . [defendant] caused [the] accident." We note that plaintiffpreserved her contention for our review (see generally CPLR 4017), and that even if shehad failed to do so we would reach the issue in the interest of justice (see generally Butler vCounty of Chautauqua, 277 AD2d 964 [2000]). The comment by defendants' attorney wasincorrect, and we are unable to conclude on the record before us that the comment did notinfluence the jury's verdict in this close case (cf. Keeler v Reardon, 49 AD3d 1211, 1213 [2008]; Pagano vMurray, 309 AD2d 910, 911 [2003]; see generally Weinberger v City of New York,97 AD2d 819, 820 [1983]; Caraballo v City of New York, 86 AD2d 580 [1982]).[*3]
In view of our determination, we do not reach plaintiff'scontention that the verdict is against the weight of the evidence.
All concur except Smith and Pine, JJ., who dissent and vote to affirm in the followingmemorandum.
Smith and Pine, JJ. (dissenting). We respectfully dissent and would affirm the judgmentinasmuch as we cannot agree with the majority that the comments of defendants' attorney duringhis summation warrant reversal. During his summation, defendants' attorney noted that he hadbeen served with a notice that plaintiff would call an expert witness, and he thereafter stated thatplaintiff failed to call her expert because the expert's testimony would not have supported hercase. Contrary to plaintiff's contention, where a party retains an expert and gives notice of thatexpert to the opposing party, the failure to call the expert may be brought to the jury's attention(see Sanders v Otis El. Co., 232 AD2d 327, 327-328 [1996], lv denied 89 NY2d813 [1997]; cf. Mason v Black & Decker [U.S.], 274 AD2d 622, 623 [2000], lvdenied 95 NY2d 770 [2000]). The record establishes that, earlier in the trial, defendants'attorney had admitted that he received a report of plaintiff's expert in which the expert concluded"that the sole proximate cause of the accident was . . . the action of [defendantdriver]." Although plaintiff's attorney did not make a specific objection to the statements ofdefendants' attorney during his summation, Supreme Court had earlier granted plaintiff's attorneyan exception with respect to any "conversation" relating to plaintiff's expert. We thus assume, forpurposes of this appeal, that the exception preserved for our review plaintiff's contention thatdefendants' attorney knowingly made a false statement during his summation. "Although we donot condone the . . . misconduct [of defendants' attorney], we are satisfied that suchconduct . . . did not have an effect upon the jury's finding[ ] and, therefore,constituted harmless error" (Kavanaugh v Nussbaum, 129 AD2d 559, 561 [1987],mod on other grounds 71 NY2d 535 [1988]). We note in particular that, during hissummation, plaintiff's attorney refuted the statements of defendants' attorney by informing thejury that the "expert was certainly prepared to state that [defendant driver's actions were] the soleand proximate cause of this accident" and that plaintiff's attorney did not call the expert to testifybecause, in his view, "it wasn't necessary."
Because we conclude that reversal is not required based on the misconduct of defendants'attorney during his summation, we must address plaintiff's final contention that the verdict isagainst the weight of the evidence. We reject that contention inasmuch as "the evidence does not'so preponderate in favor of plaintiff that the verdict could not have been reached upon any fairinterpretation of the evidence' " (Bizubv Baumer, 38 AD3d 1209, 1210 [2007]; see generally Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). Present—Martoche, J.P., Smith, Centra,Fahey and Pine, JJ.