| Ocampo v Pagan |
| 2009 NY Slip Op 09630 [68 AD3d 1077] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Sarita Ocampo, Respondent, v Angel L. Pagan et al.,Appellants. |
—[*1] Blank & Star, PLLC (Helene E. Blank and Lisa M. Comeau, Garden City, N.Y., of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants appeal from a judgmentof the Supreme Court, Kings County (Schack, J.), entered April 2, 2008, which, upon a juryverdict on the issue of damages awarding the plaintiff the principal sums of $142,000 for pastpain and suffering, $310,000 for future pain and suffering, and $72,000 for future medicalexpenses, is in favor of the plaintiff and against them in the principal sum of $524,000.
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, with costs, and the matter is remitted to the Supreme Court, Kings County, for a newtrial before a different Justice.
This matter arose out of a rear-end collision, as to which the defendants conceded liability.The defendants contend that, as a result of several improper evidentiary rulings, as well as thetrial justice's injection of himself into the proceedings on behalf of the plaintiff, they weredeprived of a fair trial on the issue of damages. We agree.
The court improvidently exercised its discretion in precluding the testimony of thedefendants' expert witness in the area of radiology. "CPLR 3101 (d) (1) (i) does not require aparty to respond to a demand for expert witness information 'at any specific time, nor does itmandate that a party be precluded from proffering expert testimony merely because ofnoncompliance with the statute,' unless there is evidence of intentional or willful failure todisclose and a showing of prejudice by the opposing party" (Hernandez-Vega vZwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting Aversa vTaubes, 194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski & Skate, Inc.,42 AD3d 563, 564 [2007]).
While a trial court "has the discretion to preclude expert testimony for the failure toreasonably comply with the statute" (Lucian v Schwartz, 55 AD3d 687, 688 [2008]),there was no finding [*2]here of failure to comply, reasonably orotherwise, with the statute. This is not a situation in which the defendants failed to demonstrategood cause for failing to disclose expert information regarding expert witnesses until the eve oftrial (cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather, the defendantsproduced an affidavit of service showing that the required notice pursuant to CPLR 3101 (d) wastimely served (see CPLR 2103 [b] [2]). The court here merely found that the plaintiff'sexplanation raised a question of fact as to whether the plaintiff had actually received the notice,specifically declining to place blame on either party for the "totality of . . .circumstances" underlying the claim of the plaintiff's counsel that he was unaware of theexistence of the first expert witness disclosure until right before the start of the trial. Where thereis no evidence of intentional or willful failure to disclose, "any potential prejudice to theplaintiffs [may be] eliminated by an adjournment of the trial" (Rowan v Cross County Ski &Skate, Inc., 42 AD3d at 564; see Shopsin v Siben & Siben, 289 AD2d 220, 221[2001]). By precluding the expert's testimony to avoid prejudicing the plaintiff, instead of simplyadjourning the trial to avoid prejudice to either party, the court, in effect, penalized thedefendants, although there was no evidence of wrongdoing on their part (see Rowan v CrossCounty Ski & Skate, Inc., 42 AD3d at 564; Shopsin v Siben & Siben, 289 AD2d at221). Contrary to the plaintiff's contention, the error was not harmless.
Moreover, the Supreme Court improvidently exercised its discretion in limiting the scope ofthe defendants' cross-examination of the plaintiff by precluding the use of pleadings, bills ofparticulars, and sworn testimony given at a hearing pursuant to General Municipal Law §50-h in subsequent lawsuits, and in precluding the introduction such documents into evidence.
Statements contained in a verified complaint, or " 'made by a party as a witness, or containedin a deposition, a bill of particulars, or an affidavit' " constitute informal judicial admissions(Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996], quoting Prince,Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v City of NewYork, 215 AD2d 353, 354 [1995]). As such, "they are generally admissible pursuant to anexception to the hearsay rule" (Payne v New Hyde Park Dodge, 163 AD2d 285, 286[1990]). While not conclusive, they are "evidence of the fact or facts admitted" (Prince,Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter of Union Indem.Ins. Co. of N.Y., 89 NY2d at 103; Gomez v City of New York, 215 AD2d at 354;Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements in the pleadingsor the bill of particulars, or in depositions or hearings from other judicial proceedings areinconsistent with the trial testimony of a witness, they are also admissible to impeach thecredibility of that witness (see Somir v Weiss, 271 AD2d 433 [2000]). Here,cross-examination testimony of the plaintiff regarding allegations in her pleadings and bill ofparticulars from a subsequent action arising out of a trip and fall, and parts of her testimony,given at a hearing pursuant to General Municipal Law § 50-h in connection with asubsequent medical malpractice action, were admissible on the issue of the truth of the factsstated, both as prior inconsistent statements impeaching the plaintiff's credibility, and as informaljudicial admissions. While prior accidents or lawsuits may not be explored where the purpose isto "induce the inference of negligence or demonstrate that the plaintiff is litigious and thereforeunworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d 1113, 1114 [1976]), "it isopen to one charged with having caused an injury to inquire into whether the claimant hadsustained, or had claimed to have sustained, the same injury in circumstances unrelated to thoseat bar" (Bowers v Johnson, 26 AD2d 552 [1966]).
The trial court's conduct, including, inter alia, its excessive intervention into the trialproceedings, warrants remittal to the Supreme Court for a new trial before a different Justice(see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679 [2006]; see alsoSchaffer v Kurpis, 177 AD2d 379 [1991]; Testa v Federated Dept. Stores, Abraham &Straus Div., 118 AD2d 696, 697 [1986]).
The defendants' remaining contention has been rendered academic in light of ourdetermination. Rivera, J.P., Eng, Chambers and Hall, JJ., concur.