| Siemucha v Garrison |
| 2013 NY Slip Op 07608 [111 AD3d 1398] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| Paul Siemucha, Respondent, v Robert D. Garrisonet al., Appellants. (Appeal No. 1.) |
—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Niagara County (Catherine R.Nugent Panepinto, J.), entered April 17, 2012. The judgment awarded plaintiff moneydamages upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries heallegedly sustained when his vehicle was rear-ended by a vehicle driven by defendantRobert D. Garrison and owned by defendant Clarnell Henderson. Following a jury trial,the jury found that plaintiff sustained a significant limitation of use of a body function orsystem and awarded plaintiff $50,000 for past pain and suffering and $20,000 for futurepain and suffering for five years. Supreme Court denied defendants' motion to set asidethe verdict, and defendants now appeal.
The court properly denied defendants' pretrial motion seeking summary judgmentdismissing the complaint on the ground that plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d). Although we agree withdefendants that they met their initial burden, we conclude that plaintiff's submissionswere sufficient to raise a triable issue of fact on the permanent consequential limitation ofuse and significant limitation of use categories of serious injury (see Vitez v Shelton, 6 AD3d1180, 1181-1182 [2004]; Hoffmann v Stechenfinger, 4 AD3d 778, 779 [2004]), thetwo categories pursued by plaintiff at trial. Defendants failed to preserve for our reviewtheir contention that the affirmed report of the chiropractor was not in admissible form(see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 n 3 [2002]; cf. Hartley v White, 63 AD3d1689, 1690 [2009]; Shinn vCatanzaro, 1 AD3d 195, 197-198 [2003]). In any event, a plaintiff "may rely onunsworn reports and uncertified medical records if they were submitted by defendants. . . or were referenced in the reports of physicians who examined plaintiffon their behalf, and [defendants] submitted the reports of their experts" (Feggins v Fagard, 52 AD3d1221, 1223 [2008]; seeBrown v Achy, 9 AD3d 30, 32 [2004]). Here, defendants' expert reviewed andreferenced numerous [*2]medical records of plaintiff inhis report, including the chiropractic records.
Plaintiff raised a triable issue of fact to defeat defendants' motion by submittingobjective proof of spasm in his cervical spine (see Austin v Rent A Ctr. E., Inc., 90 AD3d 1542, 1544[2011]), and proof showing quantitative restrictions in the range of motion in his cervicaland lumbar spine (seeHedgecock v Pedro, 93 AD3d 1250, 1252 [2012]; Howard v Robb, 78 AD3d1589, 1590 [2010]; see generally Toure, 98 NY2d at 350-351). Finally,plaintiff submitted the opinions of two physicians who determined that plaintiff's cervicalspine injury and the exacerbation of his lumbar spine injury were causally related to theaccident.
We reject defendants' contention that the court erred in precluding them from raisingplaintiff's prior drug addiction and substance abuse at trial. Although the drug addictionand substance abuse were relevant to plaintiff's credibility (see Simon v Indursky,211 AD2d 404, 404 [1995]; see generally Badr v Hogan, 75 NY2d 629, 634[1990]), it is well settled that the nature and extent of cross-examination rests firmly withthe trial court (see Badr, 75 NY2d at 634; Bodensteiner v Vannais, 167AD2d 954, 954 [1990]; seegenerally Salm v Moses, 13 NY3d 816, 817 [2009]). We perceive no abuse ofdiscretion here inasmuch as, under the circumstances of this case, it would be moreprejudicial than probative to allow such cross-examination. Defendants further contendthat the evidence of plaintiff's drug use was relevant to the claim of loss of enjoyment oflife and plaintiff's heart problems, but defendants' expert disclosure did not include thosetopics, and the court therefore properly precluded defendants from presenting suchevidence at trial (see generally Lidge v Niagara Falls Mem. Med. Ctr. [appealNo. 2], 17 AD3d 1033, 1035 [2005]). Likewise, the court did not abuse its discretion inprecluding defendants' expert from testifying regarding his experience treating patientswith pending litigation and a study concerning that subject matter inasmuch as thosematters were not included in defendants' expert disclosure (see generally id.).
Defendants contend that the court erred in denying their request at thecommencement of trial to admit all of plaintiff's medical records in evidence pursuant toCPLR 3122-a (c). According to defendants, the records were automatically admissiblebecause plaintiff raised no objection within 10 days of trial (see id.). We rejectthat contention. Plaintiff's failure to object within 10 days before the trial waived anyobjection plaintiff had to the admissibility of the records as business records (seeCPLR 3122-a [c]; 4518 [a]), but he did not waive any objection to their admissibilitybased on other rules of evidence (see Afridi v Glen Oaks Vil. Owners, Inc., 49 AD3d 571,572 [2008]). Indeed, plaintiff properly objected at trial on relevancy grounds with respectto the admissibility of some of the records (see Montes v New York City Tr. Auth., 46 AD3d 121, 124[2007]; Bostic v State of New York, 232 AD2d 837, 839 [1996], lvdenied 89 NY2d 807 [1997]).
We further conclude that the court did not abuse its broad discretion in subsequentlyruling on the admissibility of certain medical records when defendants again sought toadmit such records in evidence during cross-examination of plaintiff's witnesses andduring their direct case (seeGerbino v Tinseltown USA, 13 AD3d 1068, 1070 [2004]). The court properlyrefused to admit the records concerning plaintiff's cardiac issues inasmuch as they werenot mentioned in defendants' expert disclosure (see Lidge, 17 AD3d at 1035).The records concerning plaintiff's knee injuries were not relevant inasmuch as plaintifftestified that he was not claiming an injury to his knee as a result of the motor vehicleaccident. The records from plaintiff's former employer were relevant to the issue ofplaintiff's credibility, but the court did not abuse its discretion in refusing to admit suchrecords on that collateral issue (see Coopersmith v Gold, 89 NY2d 957, 959-960[1997], rearg denied 89 NY2d 1086 [1997], rearg dismissed 90 NY2d889 [1997]; Restey v Higgins, 252 AD2d 954, 956 [1998]). Plaintiff did notobject to the admission of the portions of the records from the Niagara Falls MemorialMedical Center that defendants sought to admit, and defendants failed to preserve for ourreview their contention on appeal that other portions of [*3]those records should have been admitted. Contrary todefendants' further contention, having successfully moved to admit certain of plaintiff'smedical records in evidence, they waived their subsequent hearsay objections toplaintiff's use of those records (see Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1187[2008]; see also Matter of MacDonald, 40 NY2d 995, 996 [1976], reargdismissed 42 NY2d 1102 [1977]; Matter of Kellogg v Kellogg, 300 AD2d996, 996-997 [2002]).
Defendants next contend that the court erred in refusing to allow them to use a policereport from an earlier motor vehicle accident in cross-examining plaintiff. Defendantscontend that the court should have allowed them to impeach plaintiff with his admissiontherein, i.e., his complaint of neck pain after that accident. Facts stated in a police reportthat are hearsay are not admissible unless they constitute an exception to the hearsay rule,such as an admission (see Huffv Rodriguez, 45 AD3d 1430, 1432 [2007]; Stevens v Kirby, 86 AD2d391, 395 [1982]). Here, however, inasmuch as "the source of the information was neveridentified," the statement was not admissible as an admission (Huff, 45 AD3d at1432). In any event, any error by the court with respect to the police report does notrequire reversal "because any such 'error did not adversely affect a substantial right of the[defendants]' " (Cor Can. Rd.Co., LLC v Dunn & Sgromo Engrs., PLLC, 34 AD3d 1364, 1365 [2006]).
The court properly denied defendants' posttrial motion seeking to set aside theverdict as against the weight of the evidence. "A motion to set aside a jury verdict asagainst the weight of the evidence . . . should not be granted 'unless thepreponderance of the evidence in favor of the moving party is so great that the verdictcould not have been reached upon any fair interpretation of the evidence'. . . That determination is addressed to the sound discretion of the trialcourt, but if the verdict is one that reasonable persons could have rendered after receivingconflicting evidence, the court should not substitute its judgment for that of the jury"(Ruddock v Happell, 307 AD2d 719, 720 [2003]; see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). Based on the testimony of plaintiff andthe medical experts, the jury's verdict finding that plaintiff sustained a significantlimitation of use of a body function or system "is one that reasonable persons could haverendered after receiving conflicting evidence" (Ruddock, 307 AD2d at 720).Finally, the award for pain and suffering does not deviate materially from what would bereasonable compensation (see CPLR 5501 [c]). Present—Centra, J.P.,Fahey, Carni, Sconiers and Valentino, JJ.