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Bisbee v. Independent Coach Corp.

Appellate Division of the Supreme Court of New York, Second Department
Apr 13, 1992
182 A.D.2d 661 (N.Y. App. Div. 1992)

Summary

affirming award of $253,000 for injury to knee which required several operations and procedures to repair and alleviate pain

Summary of this case from Scala v. Moore McCormack Lines, Inc.

Opinion

April 13, 1992

Appeal from the Supreme Court, Nassau County (Robbins, J.).


Ordered that the judgment is modified, on the law, by reducing the award to the plaintiff from the principal sum of $303,000 to the principal sum of $253,000; as so modified, the judgment is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate amended judgment.

On the clear, dry day of April 30, 1986, the plaintiff stopped his automobile at a red light. He was then forcefully struck from behind by a school bus owned by the defendant Independent Coach Corp. and operated by the defendant Dolores Healy. Since the defendants conceded liability for the accident, the sole issue to be resolved at trial was the extent of damages sustained by the plaintiff.

After the accident, the plaintiff experienced pain in his left knee and underwent several operations and procedures to alleviate the pain and to repair the knee. At trial, the plaintiff's expert medical witness predicted a total knee replacement operation in the future. The defendants claimed that all complications to the plaintiff's knee resulted from a prior sports injury, rather than from the accident. The jury, crediting the plaintiff's evidence and witnesses, found that the accident had, in fact, caused a further deterioration and permanent injury to the plaintiff's knee, and devised its award accordingly.

Since basic economic loss cannot be recovered in a plenary action by a covered person against another covered person, we find that the plaintiff's award must be reduced by $50,000, the basic economic loss component of the award (see, Insurance Law § 5102 [a]; § 5104 [a]; Stern v Calzado, 163 A.D.2d 299, 300; McDonnell v Best Bus Co., 97 A.D.2d 433). On the other hand, since we find that the jury's verdict otherwise could have been reached under a fair interpretation of the evidence presented at trial (see, Frangello v Namm, 157 A.D.2d 649), and that the award does not deviate materially from what would be reasonable compensation, we decline to disturb it further (see, Stern v Calzado, supra; Olson v Maxwell, 125 A.D.2d 897, 898; Grimaldi v Finch, 99 A.D.2d 920, 922).

We find the defendants' claims that the court improperly excluded certain testimony and medical records from evidence to be without merit. The defendants failed to provide the plaintiff with the required statutory notice of the expert witnesses whose testimony is at issue (see, CPLR 3101 [d] [1] [i]; 22 NYCRR 202.17 [g], [h]; Stern v Calzado, supra) and to lay a proper foundation for the medical records (see, CPLR 4518 [a]). Thompson, J.P., Harwood, Balletta and Copertino, JJ., concur.


Summaries of

Bisbee v. Independent Coach Corp.

Appellate Division of the Supreme Court of New York, Second Department
Apr 13, 1992
182 A.D.2d 661 (N.Y. App. Div. 1992)

affirming award of $253,000 for injury to knee which required several operations and procedures to repair and alleviate pain

Summary of this case from Scala v. Moore McCormack Lines, Inc.

affirming award of $253,000 for injury to knee which required several operations and procedures to repair and alleviate pain

Summary of this case from Goldstein v. U.S.
Case details for

Bisbee v. Independent Coach Corp.

Case Details

Full title:MICHAEL BISBEE, Respondent, v. INDEPENDENT COACH CORP. et al., Appellants

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 13, 1992

Citations

182 A.D.2d 661 (N.Y. App. Div. 1992)
582 N.Y.S.2d 255

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