| Vaz v New York City Tr. Auth. |
| 2011 NY Slip Op 05260 [85 AD3d 902] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Marlene E. Vaz, Appellant, v New York City TransitAuthority, Respondent. |
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In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Hart, J.), entered February 10, 2009, which denied hermotion pursuant to CPLR 4404 (a) to set aside the jury verdict in favor of the defendant on theissue of liability and for judgment as a matter of law or, in the alternative, for a new trial.
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provisions thereof denying those branches of the plaintiff's motion which were pursuant toCPLR 4404 (a) to set aside the jury verdict on the issue of liability and for a new trial on thatissue, and substituting therefor provisions granting those branches of the motion; as so modified,the order is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court,Queens County, for a new trial on the issue of liability and, if warranted, for a trial on the issue ofdamages.
The plaintiff allegedly fell and was injured while riding on the defendant's bus, which sheboarded at John F Kennedy International Airport (hereinafter the airport). During the trial on theissue of liability, the plaintiff testified that, after she boarded the bus at Terminal 7 of the airport,she sat in a forward-facing seat at the front of the bus. According to the plaintiff, the bus stoppedat a designated bus stop at Terminal 4 of the airport and the bus driver turned off the engine forapproximately five minutes. As recounted by the plaintiff, a second bus pulled up alongside thebus in which she sat and discharged a passenger, who proceeded to walk directly in front of theplaintiff's bus to reach the sidewalk. According to the plaintiff's testimony, while the pedestrianwas still crossing in front of the plaintiff's bus, the plaintiff's bus driver turned the engine on, thebus jerked forward, and then stopped suddenly. The plaintiff testified that the force of the stopwas so great that she was thrown from her seat to the floor, landing on her buttocks.
During cross-examination of the plaintiff, the trial court permitted the defendant to introduceinto evidence a "Motor Vehicle Accident Form" (hereinafter the MVA form), prepared by theplaintiff at her physician's office shortly after the accident, for the purpose of impeaching theplaintiff's credibility as to how the accident occurred. In the MVA form, the plaintiff stated thatthe pedestrian "dashed" in front of the bus as it was starting. After hearing testimony from thedriver of the bus who, for the most part, could not recall the incident except that she applied thebrakes harder than usual, but denied that the movement of the bus was unusual and violent or thatany passengers on the bus were thrown to the floor, [*2]the juryfound that the defendant was not negligent. The trial court denied the plaintiff's motion, inter alia,to set aside the verdict on the issue of liability and for a new trial.
The Supreme Court improvidently exercised its discretion in permitting the defendant tointroduce the MVA form into evidence. Although a party may not be compelled to produce orsanctioned for failing to produce information which he does not possess (see Sagiv v Gamache, 26 AD3d368 [2006]; Gatz v Layburn, 9AD3d 348, 350 [2004]; Corriel v Volkswagen of Am., 127 AD2d 729, 731 [1987]),the failure to provide information in its possession will, however, preclude it from later offeringproof regarding that information at trial (see Bivona v Trump Mar. Casino Hotel Resort, 11 AD3d 574, 575[2004]; Kontos v Koakos Syllogos"Ippocrates," Inc., 11 AD3d 661 [2004]; Corriel v Volkswagen of Am., 127AD2d at 731). The record reveals that the defendant came into possession of the MVA form onNovember 21, 2002, prior to the commencement of the action. Accordingly, contrary to theSupreme Court's conclusion, the defendant was required to disclose the MVA form, whichconstituted the plaintiff's "own statement" (CPLR 3101 [e]), upon the plaintiff's demand prior totrial (see CPLR 3101 [a], [e]). The defendant, however, withheld the document until themidst of trial, and proffered no excuse for its failure to produce the document earlier (see Moog v City of New York, 30AD3d 490 [2006]; Assael vMetropolitan Tr. Auth., 4 AD3d 443 [2004]; Mingo v Manhattan & Bronx SurfaceTr. Operating Auth., 302 AD2d 274 [2003]; Pryzant v City of New York, 300 AD2d383 [2002]). Where, as here, the central issue is the parties' credibility, such error cannot beconsidered harmless (see CPLR 2002; Caplan v City of New York, 34 AD2d 549[1970]; cf. Coopersmith v Gold, 89 NY2d 957, 959 [1997]). Accordingly, the SupremeCourt should have granted that branch of the plaintiff's motion which was to set aside the verdicton the issue of liability and for a new trial on the issue of liability. Rivera, J.P., Florio, Dickersonand Eng, JJ., concur.