| Hoberg v Shree Granesh, LLC |
| 2011 NY Slip Op 05451 [85 AD3d 965] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Audrey Hoberg, Respondent, v Shree Granesh, LLC,Appellant. |
—[*1] Bauman & Kinkis, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and NaomiTaub], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from a judgmentof the Supreme Court, Suffolk County (Sweeney, J.), entered April 12, 2010, which, upon thedenial of its motion pursuant to CPLR 4401 for judgment as a matter of law, made at the close ofthe plaintiff's case, upon a jury verdict on the issue of liability finding it 70% at fault in thehappening of the accident, and upon a jury verdict on the issue of damages finding that theplaintiff sustained damages in the principal sum of $60,000, is in favor of the plaintiff andagainst it in the principal sum of $42,000.
Ordered that the judgment is affirmed, with costs.
A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted only whenthe trial court determines that, upon the evidence presented, "there is no rational process bywhich the fact trier could base a finding in favor of the nonmoving party" (Szczerbiak vPilat, 90 NY2d 553, 556 [1997]). In making this evaluation, "the trial court must afford theparty opposing the motion every inference which may properly be drawn from the factspresented, and the facts must be considered in a light most favorable to the nonmovant"(id. at 556; see Nestro vHarrison, 78 AD3d 1032, 1033 [2010]). Applying these principles here, the evidencepresented during the liability phase of the trial provided a rational basis upon which the jurycould have concluded that the absence of handrails on the stairway in the lobby of the defendant'smotel was a proximate cause of the plaintiff's injuries (see Boudreau-Grillo v Ramirez, 74 AD3d 1265, 1267 [2010]; Antonia v Srour, 69 AD3d 666,667 [2010]; Asaro v Montalvo, 26AD3d 306, 307 [2006]). Accordingly, the Supreme Court properly denied the defendant'smotion pursuant to CPLR 4401 for judgment as a matter of law.
The Supreme Court did not improvidently exercise its discretion in refusing to preclude theplaintiff's expert witness from testifying that the failure to equip the stairway in the motel lobbywith handrails violated Multiple Residence Law § 132. Although the plaintiff's expertwitness disclosure statement did not specify the statutory provision requiring the lobby stairwayto be equipped with handrails, it was sufficient to apprise the defendant of the subject matter ofthe expert's proposed testimony, and was neither "so inadequate or inconsistent with the expert'stestimony as to have been misleading, or to have resulted in prejudice or surprise" (Gagliardotto v Huntington Hosp., 25AD3d 758, 759 [2006]; see CPLR 3101 [d] [1] [i]; Rabinowitz v Elimian, 55 AD3d813, 814 [2008]; Popkave vRamapo Radiology Assoc., P.C., 44 AD3d 920, 921 [2007]). There is also no indicationthat the plaintiff's delay in retaining the expert and serving the expert witness notice was willfulor intentional, or that the defendant was prejudiced as a result of the [*2]delay (seeRowan v Cross County Ski & Skate, Inc., 42 AD3d 563, 564 [2007]; Lanoce v Kempton, 8 AD3d 449,451 [2004]; Young v Long Is. Univ., 297 AD2d 320 [2002]). Moreover, the defendantdid not show that it was prejudiced by the fact that the plaintiff's supplemental bill of particularserroneously alleged a violation of Multiple Dwelling Law § 52 (1) which does not apply tothe premises, since both that provision and the applicable provision, Multiple Residence Law§ 132, identically require stairs more than three feet and eight inches in width to beprovided with handrails on each side.
The scope and manner of cross examination "are left to the sound discretion of the trialcourt" (Salm v Moses, 13 NY3d816, 817 [2009]; see Bernstein v Bodean, 53 NY2d 520, 529 [1981]), and here theSupreme Court did not improvidently exercise its discretion in limiting the defendant'scross-examination of the plaintiff's expert witness (see Matter of Simone D., 9 NY3d 828, 829 [2001]; Forte vStandard Fusee Corp., 204 AD2d 600 [1994]).
Contrary to the defendant's contention, the Supreme Court properly permitted the plaintiff tointroduce evidence during the damages phase of the trial concerning the effect her injuries had onher activities and personality. This evidence was relevant to loss of enjoyment of life, which is afactor to be considered by the jury in assessing damages for pain and suffering (seeNussbaum v Gibstein, 73 NY2d 912, 914 [1989]; McDougald v Garber, 73 NY2d246, 255-256 [1989]). In addition, the photograph of the plaintiff recovering from her injuries inthe hospital was not inflammatory, and was properly admitted to help the jury evaluate themedical testimony and assess the plaintiff's pain and suffering (see Heath v Makita Corp.,255 AD2d 419, 420 [1998]; Salazar v Fries & Assoc., 251 AD2d 210, 211 [1998];Colon v New York City Hous. Auth., 248 AD2d 254, 255 [1998]; Axelrod vRosenbaum, 205 AD2d 722, 723 [1994]).
The defendant's remaining contentions are without merit. Rivera, J.P., Eng, Roman andMiller, JJ., concur.