Opinion
No. 30029/11KI.
2013-01-10
Mikhail CHERNIN and Larisa Chernin, Plaintiff, v. The NEW YORK CITY TRANSIT AUTHORITY, Defendant.
Mark Yagerman, Esq., Smith Mazure et al, New York, for respondent. Aleksey Feygin, Esq, Mark M. Basichas & Associates P.C., New York, for petitioner.
Mark Yagerman, Esq., Smith Mazure et al, New York, for respondent. Aleksey Feygin, Esq, Mark M. Basichas & Associates P.C., New York, for petitioner.
KATHERINE A. LEVINE, J.
Plaintiffs Mikhail and Larisa Chernin (“plaintiffs” or “Chernins”) bring this motion in limine for an order granting a unified trial based their claim that it is necessary to produce medical evidence as to the type of injuries sustained by plaintiff in order to prove the liability of the New York City Transit Authority (“defendant” or “transit authority”). Specifically, plaintiff contends that a doctor must opine that the injuries suffered by plaintiff would only arise from a certain quantum of force in order for plaintiff to prove that the jolt of the subway car caused him injuries.
Defendant opposes the motion, contending that the norm is for trials to be bifurcated, and that plaintiffs have failed to meet their burden of demonstrating the “unequivocal need for a unified trial.” Defendant asserts that plaintiff failed to submit evidentiary material in evidentiary form so as to warrant a unified trial because plaintiff's “bare bones” assertion in its CPLR 3101(d) statement is insufficient to demonstrate that the nature of injuries are “inextricably linked or intertwined” to liability.
Trial courts are “encouraged” to conduct bifurcated trials in personal injury cases. See22 NYCRR 202.42(a). Carbocci. v. Lake Grove Entertainment, 64 A.D.3d 531, 883 N.Y.S.2d 113 (2d Dept.2009); Wahid v. Long Island RR Co, 59 A.D.2d 712 (2d Dept.2007). However, where the “nature of the plaintiff's injuries has an important bearing” or is probative on the question of liability, a unified trial should be held. Carbocci, supra, 64 A.D.3d at 532, 883 N.Y.S.2d 113;DeGregorio v. Lutheran Medical Center, 142 A.D.2d 543, 544, 529 N.Y.S.2d 903 (2d Dept.1988); Mehlinger v. Basso. 5 Misc.3d 464, 465, 781 N.Y.S.2d 868 (Sup.Ct.Nass.Co.2004). A single trial on both liability and damages is warranted when medical evidence concerning the nature of a party's injuries is necessary in order to corroborate a party's version of how the accident happened. Roman v. McNally, 99 A.D.2d 544, 471 N.Y.S.2d 625 (2d Dept.1984): Mehlinger, supra. Similarly, evidence of the injury may be admitted in the liability phase “if the cause of the injuries is inextricably intertwined with the extent of the injuries.” Naumann v. Richardwon, 76 A.D.2d 917–18, 429 N.Y.S.2d 259 (2d Dept.1980).
The decision as to whether to conduct a unified or bifurcated trial rests with in the discretion of the trial court and should not be disturbed “absent an improvident exercise of discretion.” Abrams v. Excellent Bus Service, 91 A.D.3d 681, 682, 937 N.Y.S.2d 117 (2d Dept 2012); Wright v. NYC Housing Authority, 273 A.D.2d 378, 709 N.Y.S.2d 600 (2d Dept.2000). See,CPLR 603. The party opposing bifurcation bears the burden of showing that “the nature of the injuries necessarily assists the fact finder” in determining the issue of liability. Galarza v. Crown Container Co., 90 A.D.3d 703, 934 N.Y.S.2d 465, (2d Dept.2011); Carbocci v. Lake Grove Entertainment, LLC, 64 AD3d 531,532 (2d Dept.2009).
This Court first rules that the CPLR 3101 d statement provided by plaintiff was sufficient to raise an issue as to the necessity of holding a unified trial. There is no requirement that in order for a unified trial to be held, the proffered expert must submit an affidavit detailing why plaintiff's injuries are crucial to the proof of liability. See, Rosati v. Brigham Park Cooperative Apts, (Sup.Ct., Kings Co, Index No. 15229/08, Battaglia, JSC), 10/15/12 NYLJ.
There clearly is a dispute between the parties as to whether any jolt that occurred in the subway caused the injuries to plaintiff. Plaintiff avers that the sudden jolt and force of the train caused him to completely rupture his right biceps tendon and then caused him to fall head first into the rear door which resulted in his sustaining facial and head trauma. In its CPLR 3101(d) expert disclosure, plaintiff asserts that its expert-Dr. Andrew Collier-will opine as to the nature and cause of plaintiff's injuries to his upper extremity and the force necessary to cause such an injury. He will also testify as to the absence of any preexisting conditions that would contribute to such an injury.
Defendant disputes that any of the plaintiff's injuries arose from any movement by the subway and asserts that plaintiff's injury was chronic and that it did not stem from the subject accident. It also asserts that since plaintiff failed to report the “violent nature of the injury,” although he did lose his balance, to either the emergency room at Coney Island Hospital or to any train personnel, there can be no liability.
Based upon the above, the Court finds that the nature of the plaintiff's injuries has an important bearing on the question of liability and that the medical evidence concerning the nature of plaintiff's injuries is necessary in order to corroborate plaintiff's version of how the accident is warranted.
However, according to precedent, plaintiff' expert may develop the nature and extent of plaintiff's injuries as they relate to the liability aspect of the case in a bifurcated trial. In Martell v. Chrysler Corp. 186 A.D.2d 1059, 588 N.Y.S.2d 682 (2d Dept.1992), the Second Department rejected the plaintiff's contention that the lower court's ruling that a bifurcated trial be held effectively precluded him from proving the cause of his injuries. Although the court did not allow plaintiff to offer proof regarding pain and suffering or economic damage, the court afforded the plaintiff ample latitude to develop the nature and extent of his injuries as they relate to the liability aspect of the case. Thus, plaintiff's expert, a biomedical and biomechanical engineer, testified at length about plaintiff's injuries and his entire 650–page medical history was admitted into evidence. See also, Grossman v. General Motors Corp ., 1992 U.S. Dist. LEXIS 2632, 1992 WL 51523 (S.D.NY 1992) (Bifurcated trail granted although court permitted a limited amount of medical evidence on the question of liability as part of the proof regarding which portions of the car impacted upon plaintiff. The court noted that his proof “should be less extensive than the potential medical proof relating to the issue of damages”); Cybulski v. Bethlehem Steel Corp., 266 A.D.2d 836, 698 N.Y.S.2d 212 (4th Dept.1991).
In light of the above, plaintiff's motion in limine for a unified trial is denied but its request that its medical expert be permitted to testify about the nature and extent of plaintiff's injuries, as they relate to the sudden force and jolt of the subway during the liability phase of the trial, is granted. This expert cannot, however, offer proof regarding pain and suffering and economic damage during the liability phase.
The foregoing shall constitute the Decision, Order and Judgment of the Court.