| Boehm v Rosario |
| 2017 NY Slip Op 07049 [154 AD3d 1298] |
| October 6, 2017 |
| Appellate Division, Fourth Department |
[*1]
| Christina M. Boehm, Appellant, v Guisseppe G. Rosario, AlsoKnown as G.M. Rosario-Parrilla, Respondent. |
Vinal & Vinal, P.C., Buffalo (Jean Vinal of counsel), for plaintiff-appellant.
Hagelin Spencer LLC, Buffalo (William Swift of counsel), for defendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Deborah A. Chimes, J.), enteredSeptember 15, 2016. The order denied plaintiff's motion to set aside the jury verdict.
It is hereby ordered that the order so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the vehicle she was driving collided with a vehicle operated by defendant. After ajury trial, the jury found that both plaintiff and defendant were negligent and apportioned fault,and further found that plaintiff did not sustain a serious injury. Plaintiff appeals from an orderdenying her posttrial motion to set aside the verdict.
Plaintiff contends that she is entitled to a new trial because defense counsel repeatedly madestatements to the jury implying that defendant had no insurance. We reject that contention.References to insurance coverage are generally irrelevant to the issues and are improper becauseof their prejudicial nature (see Leotta v Plessinger, 8 NY2d 449, 461 [1960], reargdenied 9 NY2d 688 [1961], mot to amend remittitur granted 9 NY2d 686 [1961];Rendo v Schermerhorn, 24 AD2d 773, 773 [1965]; see also Salm v Moses, 13 NY3d 816, 817-818 [2009]). Contrary toplaintiff's contention, defense counsel's references to defendant as her "client" were not improper,and her statements that defendant should not be held "responsible" for certain medical expenseswere in response to plaintiff's testimony and the arguments of plaintiff's counsel. Defense counselnever stated or implied that defendant lacked insurance coverage for the accident or would haveto pay out of pocket (cf. Rendo, 24 AD2d at 773).
We reject plaintiff's further contention that she is entitled to a new trial based on allegedcumulative error during the trial. Plaintiff never requested that Supreme Court take judicialnotice of a certain mathematical computation on speed and distance, and therefore there was noerror by the court in failing to take such judicial notice. The court did not abuse its discretion innot allowing redirect examination of plaintiff's treating physician and limiting the duration of thecross-examination of the physician who examined plaintiff on defendant's behalf (see Swatland v Kyle, 130 AD3d1453, 1454 [2015]; see generally Feldsberg v Nitschke, 49 NY2d 636, 643 [1980],rearg denied 50 NY2d 1059 [1980]). The court's rulings were based on time constraints;the court ended questioning at 5:00 p.m. on the respective days of the witnesses' testimony, andplaintiff did not seek to have the witnesses returned the following day. We have examinedplaintiff's remaining claims of alleged errors during the trial and conclude that they are withoutmerit.
Plaintiff raises no issue on appeal regarding the jury's finding of no serious injury, and shehas therefore abandoned her contention in her posttrial motion that the verdict should be set asideas against the weight of the evidence on that issue (see Ciesinski v Town of Aurora, 202AD2d 984, 984 [1994]). The jury's finding that plaintiff did not sustain a serious injury rendersmoot [*2]plaintiff's contentions that the court erred in denying hermotion for a directed verdict on the issue of negligence (see Cummings v Jiayan Gu, 42 AD3d 920, 923 [2007]), and thatthe verdict is against the weight of the evidence with respect to the jury's apportionment of fault(see Hinterberger v Leslie, 45 AD3d1314, 1314 [2007]).
All concur except Lindley, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Lindley, J. (dissenting). I respectfully dissent. As a general rule, "whether a defendant has orhas not obtained insurance is irrelevant to the issues, and, since highly prejudicial, therefore,inadmissible" (Leotta v Plessinger, 8 NY2d 449, 461 [1960], rearg denied 9NY2d 688 [1961], mot to amend remittitur granted 9 NY2d 686 [1961]; seeConstable v Matie [appeal No. 3], 199 AD2d 1004, 1005 [1993]). Here, I conclude thatplaintiff should be afforded a new trial because defendant's attorney improperly implied to thejury that defendant lacked insurance coverage and that any award of damages would have to bepaid out of his own pocket (see Vassura v Taylor, 117 AD2d 798, 799 [1986], appealdismissed 68 NY2d 643 [1986]; Doody v Gottshall, 19 Misc 3d 1136[A], 2008 NY Slip Op51021[U], *8 [2008], affd as mod 67 AD3d 1349 [2009]).
At the outset of his opening statement, defense counsel, referring to defendant, said, "Youknow, he's an immigrant, he works full time, he has two jobs, and just trying to make a living."Although defendant did in fact have insurance coverage for the accident and defense counsel hadbeen retained by the carrier, defense counsel went on to say that defendant "hired me to defendhim in this lawsuit," and that plaintiff, who "wasn't working at the time of the accident," is"trying to get money from my client." Defense counsel further stated in his opening: "I don't thinkit's my client's responsibility to pay this woman"; "Should my client be responsible for payingthis woman's [medical] bills?"; and "[defendant] shouldn't have to pay for plaintiff's painmedication." Plaintiff's counsel objected three times to these comments, but the court overruledthe objections and declined to give a curative instruction. In his summation, defense counselagain suggested that defendant himself would have to satisfy a judgment with his own funds,stating, "I don't think my client should have to pay for" certain of plaintiff's claimed expensesarising from the accident.
In my view, the above comments "may very well have engendered sympathy [for defendant]in the jurors' minds" (Rendo v Schermerhorn, 24 AD2d 773, 773 [1965]), thus deprivingplaintiff of a fair trial. I would therefore reverse the order, grant plaintiff's posttrial motion to setaside the verdict, and grant a new trial. Present—Centra, J.P., Carni, Lindley andWinslow, JJ.