| Daniels v Simon |
| 2012 NY Slip Op 06577 [99 AD3d 658] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Deborah Daniels et al., Appellants, v Werner Simon,Respondent. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (John B. Saville of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Suffolk County (Spinner, J.), entered June 9, 2010, which, upona jury verdict in favor of the defendant on the issue of damages, and upon an order of the samecourt dated May 21, 2010, denying the plaintiffs' motion pursuant to CPLR 4404 (a) to set asidethe jury verdict on the issue of damages as contrary to the weight of the evidence, is in favor ofthe defendant and against them dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
At the conclusion of a trial on the issue of damages, the jury returned a verdict in favor of thedefendant, finding that the subject motor vehicle accident was not a substantial factor in causingthe injuries allegedly sustained by the plaintiff Deborah Daniels. The plaintiffs contend that thejury verdict on the issue of damages should be set aside because it was contrary to the weight ofthe evidence. However, a jury verdict in favor of a defendant should not be set aside as contraryto the weight of the evidence unless the evidence preponderates so heavily in the plaintiff's favorthat the verdict could not have been reached on any fair interpretation of the evidence (seeLolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Adetimirin v Howland Hook Hous. Co., Inc., 92 AD3d 814, 815[2012]; Wilson v Hallen Constr.Corp., 40 AD3d 986, 987 [2007]; Giugliano v Giammarino, 37 AD3d 533 [2007]). This standard"was intended to accentuate the principle that when a jury, upon being presented with sharplyconflicting evidence creating a factual dispute, resolved the controversy, in favor of the defendantupon a fair interpretation of the evidence, that finding should be sustained" (Nicastro vPark, 113 AD2d 129, 134 [1985]; see Nelson v Schwartz, 90 AD3d 626 [2011]; Wilson v HallenConstr. Corp., 40 AD3d at 987).
Here, the jury was presented with divergent expert testimony as to whether, as a result of thesubject accident, Deborah Daniels sustained a herniated disc, a traumatic injury whichaccelerated the normal age-related degenerative process and ultimately led to spondylolisthesisnecessitating spinal fusion surgery, or whether the condition of the lumbar region of her spinewas attributable solely to degeneration. This evidence presented issues of credibility to beresolved by the jury, which had the opportunity to see and hear the witnesses (see Rosenfeld v Baker, 78 AD3d810, 811 [2010]; Wilson v Hallen Constr. Corp., 40 AD3d at 988). The jury'sresolution of the credibility issues in favor of the defendant is supported by a fair interpretation ofthe evidence and, thus, may not be disturbed (see Rosenfeld v Baker, 78 AD3d at 811;Caccioppoli v City of New York, 50 AD3d [*2]1079,1080 [2008]; Cummings v JiayanGu, 42 AD3d 920, 923 [2007]; Wilson v Hallen Constr. Corp., 40 AD3d at 988;Fallon v Esposito, 35 AD3d1067, 1068-1069 [2006]; Syrkett v Burden, 176 AD2d 938, 939 [1991]; Kupfer vDalton, 169 AD2d 819 [1991]).
Further, the Supreme Court properly declined the plaintiffs' request to charge the jury thatdamages could be awarded if it found that Deborah Daniels sustained a medically determinedinjury or impairment of a nonpermanent nature which prevented her from performingsubstantially all of the material acts which constituted her usual and customary daily activities fornot less than 90 days during the 180 days immediately following the subject accident (seeInsurance Law § 5102 [d]). A charge under the 90/180 day category of serious injury wasnot warranted because the plaintiffs failed to offer competent evidence that the allegedcurtailments of Deborah Daniels' usual and customary daily activities during the statutory periodwas the result of a medically-determined injury causally related to the subject accident (see Conder v City of New York, 62AD3d 743, 744 [2009]; Hausman v Gourville, 248 AD2d 674 [1998]).
The Supreme Court also correctly declined to admit into evidence various medical reportsprepared by physicians who examined Deborah Daniels on behalf of her insurance carrier. Thereports of these nontestifying physicians were inadmissible because the physicians wereunavailable for cross-examination (see Wagman v Bradshaw, 292 AD2d 84, 88 [2002];see also Elshaarawy v U-Haul Co. ofMiss., 72 AD3d 878, 882 [2010]; Clevenger v Mitnick, 38 AD3d 586, 587 [2007]; Schwartz vGerson, 246 AD2d 589, 590 [1998]). The narrative medical report of Deborah Daniels'treating neurologist was also properly excluded. Although office records which contain a treatingphysician's day-to-day business entries qualify for admission as business records if thefoundational requirements of CPLR 4518 (a) are satisfied, a medical report is not admissible as abusiness record where, as here, it contains the physician's opinion or expert proof (see Matter of Bronstein-Becher vBecher, 25 AD3d 796, 797 [2006]; Komar v Showers, 227 AD2d 135, 136[1996]).
The plaintiffs' remaining contentions are without merit. Eng, P.J., Skelos, Belen and Cohen,JJ., concur.