| Doran v McNulty |
| 2013 NY Slip Op 04572 [107 AD3d 843] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Laura Doran, Appellant, v John McNulty et al.,Respondents. |
—[*1] Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Sim R. Shapiro and Margot L.Ludlam of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from ajudgment of the Supreme Court, Suffolk County (Whelan, J.), entered November 10,2011, which, upon a jury verdict on the issue of liability finding the defendants 100% atfault in the happening of the accident, a jury verdict on the issue of damages awardingher no damages, and the denial of her motion pursuant to CPLR 4404 (a) to set aside theverdict on the issue of damages, is in favor of the defendants and against her dismissingthe complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff, who was then 31 years old, slipped and fell on premises owned by thedefendants, and commenced this action to recover damages for alleged injuries to herlower back. Following a jury verdict against the defendants on the issue of liability, theparties proceeded to a trial on the issue of damages. At the damages trial the plaintifftestified that she had experienced, and been treated for, pain in her lower back since shewas 16 years old, but the pain had become more intense and constant after the accident.The plaintiff's expert testified that the fall had aggravated the plaintiff's preexistingcondition. For the defense, a radiologist who reviewed the MRI films of the plaintiff'sback taken after the accident testified that the plaintiff's condition could not have beencaused by an acute event such as a fall, and was instead the result of the plaintiff'spreexisting degenerative disc disease. An orthopedic surgeon called by the defendantstestified that the accident aggravated the preexisting degenerative changes in theplaintiff's back, but that the plaintiff had "no radicular symptoms" as a result of theaccident. The jury awarded the plaintiff no damages.
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Piazza v Corporate Bldrs. Group,Inc., 73 AD3d 1006, 1006-1007 [2010]). "It is for the jury to makedeterminations as to the credibility of the witnesses, and great deference in this regard isaccorded to the jury, which had the opportunity to see and hear the witnesses" (Exarhouleas v Green 317 Madison,LLC, 46 AD3d 854, 855 [2007]; see Lopreiato v Scotti, 101 AD3d 829 [2012]; Verizon N.Y., Inc. v Orange &Rockland Utils., Inc., 100 AD3d 983 [2012]; Salony v [*2]Mastellone, 72 AD3d 1060, 1061 [2010]).
Here, a fair interpretation of the evidence supported the jury's determination (see Verizon N.Y., Inc. v Orange &Rockland Utils., Inc., 100 AD3d 983 [2012]; Piazza v Corporate Bldrs.Group, Inc., 73 AD3d at 1006-1007; Salony v Mastellone, 72 AD3d at1061). While the plaintiff correctly notes that the orthopedic surgeon called by thedefendants testified that the subject accident aggravated the preexisting degenerativechanges in the plaintiff's back, in light of the conflicting expert testimony at trial, the jurycould accept or reject the testimony of a particular expert (see Alston v Sunharbor Manor,LLC, 48 AD3d 600, 602 [2008]; Ross v Mandeville, 45 AD3d 755, 757 [2007];Ventriglio v Active Airport Serv., 234 AD2d 451, 453 [1996]).
The plaintiff failed to timely submit a supplemental bill of particulars (seeCPLR 3043 [b]). Accordingly, the Supreme Court did not improvidently exercise itsdiscretion in precluding the admission of additional claims of damages at trial (see Salgado v Town SportsIntl., 73 AD3d 898, 899 [2010]; Pauling v Glickman, 232 AD2d 465,466 [1996]).
The Supreme Court did not improvidently exercised its discretion in precluding theplaintiff's counsel from questioning a defense expert witness about a collateral matterwhich had no relevance to any issue in the case (see Perkins v Murphy, 7 AD3d 500, 500-501 [2004];Prendergast v Patel, 301 AD2d 508, 509 [2003]; cf. Castillo v 62-25 30th Ave.Realty, LLC, 74 AD3d 1116 [2010]; Platovsky v City of New York,275 AD2d 699, 700 [2000]). Rivera, J.P., Leventhal, Sgroi and Cohen, JJ., concur.