Capone v. Gannon

10 Citing cases

  1. In re Lane

    68 A.D.3d 995 (N.Y. App. Div. 2009)   Cited 63 times

    The Family Court properly determined that the mother should not be allowed to testify in rebuttal to the admission of the file from the Family Court, Richmond County. "'The question of whether to permit the introduction of rebuttal evidence rests within the sound discretion of the trial court and the court's determination in that regard should not be disturbed on appeal absent a clear abuse or improvident exercise of discretion'" ( Coopersmith v Gold, 223 AD2d 572, 574, affd 89 NY2d 957, quoting Capone v Gannon, 150 AD2d 749, 750). Here, since the mother had previously denied that a proceeding had been initiated against her in Richmond County, the determination by the Family Court not to allow her to introduce rebuttal evidence was not an improvident exercise of discretion ( see Rowell v Callahan, 233 AD2d 383).

  2. Kerr v. Vinokur

    37 A.D.3d 418 (N.Y. App. Div. 2007)

    On this record, the denial of the plaintiff's request to present rebuttal evidence was neither a clear abuse nor an improvident exercise of the trial court's discretion ( see Capone v Gannon, 150 AD2d 749, 750).

  3. Farrell v. Gelwan

    30 A.D.3d 563 (N.Y. App. Div. 2006)   Cited 9 times

    The expert's testimony did not transcend the scope of information set forth in the applicable expert disclosure form or the previously exchanged medical reports, received well before trial ( see CPLR 3101 [d] [1] [i]; 22 NYCRR 202.17 [h]; Cutsogeorge v. Hertz Corp., 264 AD2d 752; Serpe v. Eyris Prods., 243 AD2d 375, 380; Freeman v. Kirkland, 184 AD2d 331; cf. Gregory v. Mulligan, 266 AD2d 344). Both the grant of a continuance and the presentation of rebuttal proof rest within the sound discretion of the trial court, and the court's decision in that regard should not be disturbed on appeal unless the court improvidently exercised its discretion ( see Capone v. Gannon, 150 AD2d 749, 750; Balogh v. H.R.B. Caterers, 88 AD2d 136, 143; Wilson v. Wilson, 97 AD2d 897). Under the circumstances of this case, the court providently exercised its discretion in denying the plaintiff's application for a continuance to secure expert rebuttal proof related to the issue of macular degeneration and causation ( see Paulino v. Marchelletta, 216 AD2d 446, 446-447; Menderis v. Menderis, 148 AD2d 427; Chumsky v. Chumsky, 108 AD2d 714). Because the plaintiff was placed on sufficient notice as to the defense theory of causation, the plaintiff could have adduced evidence to negate the defense theory on her direct case and it was improper to seek additional time to rebut that theory ( see Republic of Croatia v. Trustee of Marquess of Northampton 1987 Settlement, 203 AD2d 167; Harvin v. New York City Tr. Auth., 198 AD2d 401; Kupfer v. Dalton, 169 AD2d 819, 820; Kapinos v. Alvarado, 143 AD2d 332, 333). In any event, the jury exonerated the defendant of any malpractice and never reached the issu

  4. People v. Cisneros

    284 A.D.2d 407 (N.Y. App. Div. 2001)

    The trial court providently exercised its discretion when, over the defendant's objection, it permitted the prosecution to recall Officer McGrath as a rebuttal witness on the issue of the defendant's intoxication. The officer's rebuttal testimony countered an affirmative fact raised by the defendant's own testimony and did not merely bolster or repeat the officer's testimony (see, People v. Harris, 57 N.Y.2d 335; Capone v. Gannon, 150 A.D.2d 749; Kapinos v. Alvarado, 143 A.D.2d 332). Moreover, the defendant opened the door to this line of inquiry by cross-examining the officer and by his own testimony as to the issue of intoxication (see, People v. West, 237 A.D.2d 470).

  5. People v. Grindley

    243 A.D.2d 580 (N.Y. App. Div. 1997)   Cited 4 times

    We disagree. "`The question of whether to permit the introduction of rebuttal evidence rests within the sound discretion of the trial court and the court's decision in that regard should not be disturbed on appeal absent a clear abuse or improvident exercise in discretion'" ( Coopersmith v. Gold, 223 A.D.2d 572, 574, affd 89 N.Y.2d 957; Capone v. Gannon, 160 A.D.2d 749, 750). Although the testimony of the defendant's wife tended to impeach his credibility, the subject of their marriage was not a collateral issue and was properly introduced as rebuttal evidence ( see, People v. Gross, 171 A.D.2d 810; People v. Medina, 130 A.D.2d 515). Bracken, J.P., Pizzuto, Friedmann and McGinity, JJ., concur.

  6. Ntavelis v. Seremetis

    240 A.D.2d 643 (N.Y. App. Div. 1997)

    Ordered that the judgment is affirmed, with costs. To the extent that portions of the plaintiff's hospital records were improperly admitted into evidence by the trial court, we find that any such error was harmless ( cf., Borgo v. Sontag, 98 A.D.2d 786; see also, Kutanovski v. DeCicco, 152 A.D.2d 540; Russo v. Osofsky, 112 A.D.2d 926). The plaintiff's remaining contention is lacking in merit ( see, e.g., Capone v. Gannon, 150 A.D.2d 749; Saleh v. Sears, Roebuck Co., 119 A.D.2d 652). O'Brien, J.P., Copertino, Thompson and Krausman, JJ., concur.

  7. Coopersmith v. Gold

    223 A.D.2d 572 (N.Y. App. Div. 1996)   Cited 16 times

    The plaintiff and the dissent further maintain that the trial court erred in refusing to reopen the case to permit the plaintiff to call the alleged former patients as rebuttal witnesses. However, it is well settled that "[t]he question of whether to permit the introduction of rebuttal evidence rests within the sound discretion of the trial court and the court's decision in that regard should not be disturbed on appeal absent a clear abuse or improvident exercise of discretion" ( Capone v Gannon, 150 A.D.2d 749, 750; see, Saleh v Sears, Roebuck Co., 119 A.D.2d 652). The plaintiff contends that these witnesses would have testified that they also had sexual relations with the defendant and did not observe his scars.

  8. Zelnik v. Zelnik

    196 A.D.2d 700 (N.Y. App. Div. 1993)   Cited 17 times

    The trial court's findings are to be accorded great respect (Eschbach v Eschbach, 56 N.Y.2d 167, 173), and the trial court was free to reject the opinions of both the Law Guardian and the court-appointed psychiatrist (see, State of New York ex rel. H.K. v M.S., 187 A.D.2d 50, 53). The child's preference was properly deemed not controlling because of the potential for influence having been exerted (see, O'Connor v O'Connor, 146 A.D.2d 909, 911). There was no showing of bias on the part of the court and it acted within its discretion in refusing rebuttal testimony (see, Capone v Gannon, 150 A.D.2d 749, 750). Concur — Sullivan, J.P., Ellerin, Kupferman, Ross and Asch, JJ.

  9. Neiger v. Perlstein

    182 A.D.2d 615 (N.Y. App. Div. 1992)

    We reject the defendant's claim that the verdict finding him 100% at fault in the happening of the accident was against the weight of the evidence. The issue of credibility was resolved against the defendant by the jurors, whose determination is supported by a fair interpretation of the evidence (see, Holt v New York City Tr. Auth., 151 A.D.2d 460; Capone v Gannon, 150 A.D.2d 749). Further, the verdict as to damages was not excessive.

  10. Patti v. Fenimore

    181 A.D.2d 869 (N.Y. App. Div. 1992)   Cited 14 times

    The jury could properly infer from the location of the damage to the two cars and from the fact that the plaintiffs' car hit the defendants'"big Cadillac" with such force that the defendants' car spun around, that the plaintiffs' car was traveling a good deal faster than Lynn Patti claimed. This evidence, together with evidence that the plaintiff driver looked straight ahead the entire time and failed to see the defendants' car until the impact, and failed to slow down at any time, supports the jury's verdict (see, Yaver v Gofus, 156 A.D.2d 556; Olson v Dougherty, 128 A.D.2d 920; Froese v De Vito, 123 A.D.2d 305; Beechey v De Sorbo, 53 A.D.2d 727). It cannot be said that the jury's conclusion that the defendant driver was not negligent could not have been reached upon any fair interpretation of the evidence (see, Lopez v Rosenblatt, 164 A.D.2d 859; Buchberger v Barrack, 151 A.D.2d 632; Stutman v Ortel, 150 A.D.2d 555; Capone v Gannon, 150 A.D.2d 749). Thus, the trial court properly denied the plaintiffs' motion to set aside the jury verdict, "`for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict'" (Quines v Ostrander, 169 A.D.2d 826, 827, quoting Nicastro v Park, 113 A.D.2d 129, 133, supra; Pannetta v Ramo, 138 A.D.2d 686). Thompson, J.P., Harwood, Balletta and Rosenblatt, JJ., concur.