| Novas v Zuckerman |
| 2012 NY Slip Op 02271 [93 AD3d 585] |
| March 27, 2012 |
| Appellate Division, First Department |
| Beato Novas, Appellant, v Joseph D. Zuckerman, M.D.,Respondent, et al., Defendants. |
—[*1] McAloon & Friedman, P.C., New York (Gina Bernardi Di Folco of counsel), forrespondent.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 16, 2010,after a jury trial, in an action alleging medical malpractice, dismissing the complaint as againstdefendant Joseph D. Zuckerman, M.D., unanimously affirmed, without costs.
CPLR 3117 (a) (2) provides that "so far as admissible under the rules of evidence," a party'sdeposition "may be used for any purpose by any party who was adversely affected when thedeposition testimony was given or who is adversely interested when the deposition testimony isoffered in evidence." However, although deposition testimony is generally admissible underCPLR 3117 (a) (2), that section does not constitute an "absolute and unqualified right to use thedeposition at any time during the course of trial" (Feldsberg v Nitschke, 49 NY2d 636,643 [1980]). The trial court retains discretion concerning the admissibility of such evidence andits exercise of discretion "is not reviewable save for a clear abuse of discretion" (id.).
Here, the trial court providently exercised its discretion in denying plaintiff's application tointroduce into evidence portions of Dr. Zuckerman's deposition testimony. The testimony at issueconcerned the necessity of full-length and/or standing leg X rays to measure plaintiff's joint-lineon his knee. Contrary to plaintiff's contention, the proffered testimony would not have rebuttedthe testimony of defendant's expert, who only testified as to the amount of femoral boneremoved. The expert did not testify as to measuring the joint line, nor the type of X rays neededto measure the joint line. Moreover, the preclusion of the testimony was not prejudicial toplaintiff's case, since the testimony of defendant's expert was based on X rays that were alreadyin evidence (see e.g. Gogatz v New York City Tr. Auth., 288 AD2d 115, 116 [2001]).
The jury's verdict was based upon a fair interpretation of the evidence (see generally McDermott v Coffee Beanery,Ltd., 9 AD3d 195, 206 [2004]). The evidence supported the jury's [*2]finding that defendant was not negligent in removing the amount offemoral bone during plaintiff's knee replacement surgery, so as not to alter the joint line.Concur—Saxe, J.P., Sweeny, Catterson, Renwick and Manzanet-Daniels, JJ.