| Nary v Jonientz |
| 2013 NY Slip Op 06454 [110 AD3d 1448] |
| October 4, 2013 |
| Appellate Division, Fourth Department |
| Walter J. Nary, II, Respondent, v Rosemary Jonientz,Appellant. (Appeal No. 2.) |
—[*1] Cellino & Barnes, P.C., Rochester (Richard P. Amico of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.),entered April 10, 2012. The judgment, among other things, awarded plaintiff moneydamages against defendant.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: In appeal No. 1, defendant appeals and plaintiff cross-appeals froman order that granted in part defendant's motion to set aside the jury verdict by reducingthe award of damages in this motor vehicle accident case, and in appeal No. 2, defendantappeals from the judgment entered on the jury's verdict as reduced by Supreme Court.We note at the outset that defendant's appeal from the order in appeal No. 1 "must bedismissed because the right of direct appeal [from the order therein] terminated with theentry of judgment in the action" (Smith v Catholic Med. Ctr. of Brooklyn &Queens, 155 AD2d 435, 435 [1989]; see Doyle v City of Buffalo, 56 AD3d 1133, 1133-1134[2008]; see also CPLR 5501 [a] [1]). In addition, although plaintiff did notcross-appeal from the judgment in appeal No. 2, "we exercise our discretion to treat [his]notice of appeal [in appeal No. 1] as valid and deem his appeal as taken from the. . . judgment" in appeal No. 2 (National Fuel Gas Distrib. Corp. v Erie County Water Auth., 99AD3d 1231, 1232 [2012]; see Hughes v Nussbaumer, Clarke & Velzy, 140AD2d 988, 988 [1988]; see also CPLR 5520 [c]).
Defendant failed to preserve for our review her contention that the court erred inpermitting plaintiff to cross-examine defendant's expert physician concerningcompensation he had been paid in the past for performing medical examinations andproviding testimony for defendants in other personal injury actions. Defendant's expertphysician testified in a recorded video deposition. While defendant's attorney madevarious objections during the recording of that video testimony, there is no indicationthat defendant ever made a timely and specific objection to the court or otherwise soughta ruling regarding the nature or scope of that cross-examination (see CPLR 4017,5501 [a] [3]; see generallySantillo v Thompson, 71 AD3d 1587, 1589 [2010]).[*2]
Defendant further contends that the court abusedits discretion in redacting certain portions of the recorded testimony of defendant's expertphysician (see generally Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]). All ofthe discussions and rulings regarding specific redactions to the recorded testimony ofdefendant's expert physician took place off the record, and defendant thereafter registeredonly a general objection to those redactions. Moreover, with respect to the redactions oftestimony where defendant's expert physician read from medical records subsequentlyadmitted in evidence at trial, the record establishes that defendant's attorney seeminglyacquiesced in those redactions based on the court's ruling that defendant's attorney wouldbe permitted to read from those records during summation. Thus, on this record, it cannotbe said that the court abused it discretion in redacting portions of the recorded testimonyof defendant's expert physician.
We reject defendant's contention that the awards of damages for past and future painand suffering, as reduced by the court, "deviate[ ] materially from what would bereasonable compensation" (CPLR 5501 [c]; see generally Caprara v ChryslerCorp., 52 NY2d 114, 126-127 [1981]). We reject defendant's further contention thatthe award of damages for future medical expenses, also as reduced by the court, isspeculative and was not established with reasonable certainty (see Huff v Rodriguez, 45AD3d 1430, 1433 [2007]; Kirschhoffer v Van Dyke, 173 AD2d 7, 9-10[1991]). We likewise reject plaintiff's contention on his cross appeal that the court erredin reducing the awards of damages for past and future pain and suffering, and for futuremedical expenses. We have reviewed defendant's remaining contentions and concludethat they are without merit. Present—Centra, J.P., Fahey, Lindley, Sconiers andWhalen, JJ.