Opinion
03-09-2017
KAREN E.A., Infant by Mother and Natural Guardian Maria MERCEDES M., et al., Plaintiffs–Respondents, v. 545 WEST 146TH STREET, INC., Defendant–Appellant, Jose Gonzalez, Defendant.
Shapiro & Coleman PC, Mineola (Richard Coleman of counsel), for appellant. Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondents.
Shapiro & Coleman PC, Mineola (Richard Coleman of counsel), for appellant.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondents.
SWEENY, J.P., MAZZARELLI, MOSKOWITZ, KAHN, JJ.
Judgment, Supreme Court, New York County (Shlomo Hagler, J.), entered February 2, 2016, awarding plaintiffs the total sum of $240,123.23, unanimously affirmed, without costs.
This action for personal injuries was referred to a Special Referee for an inquest and report on the issue of damages. Defendant 545 West 146th Street, Inc. (defendant) waived its right to object to entry of the plastic surgeon's report, dated August 11, 2008, as a business record, as it is undisputed that plaintiffs served it with notice of their intention to enter the document into evidence, and defendant failed to object, as required by CPLR 3122–a(c) (see Siemucha v. Garrison, 111 A.D.3d 1398, 1400, 975 N.Y.S.2d 518 [4th Dept.2013] ; Streicker v. Adir Rent A Car, 279 A.D.2d 385, 719 N.Y.S.2d 562 [1st Dept.2001] ).
Defendant's failure to comply with CPLR 3122–a did not prevent it from objecting to the report's admissibility based on other rules of evidence (see Bostic v. State of New York, 232 A.D.2d 837, 649 N.Y.S.2d 200 [3rd Dept. 1996], lv. denied 89 N.Y.2d 807, 655 N.Y.S.2d 887, 678 N.E.2d 500 [1997] ). However, defendant's objection that the plastic surgeon's report was not admissible because it was prepared for the purpose of litigation and was not germane to diagnosis and the child's treatment is not preserved for appellate review (see Benavides v. City of New York, 115 A.D.3d 518, 519, 982 N.Y.S.2d 85 [1st Dept.2014] ; Braunstein v. Taj Group of Hotels, 235 A.D.2d 370, 653 N.Y.S.2d 18 [1st Dept.1997], lv. denied 89 N.Y.2d 816, 659 N.Y.S.2d 857, 681 N.E.2d 1304 [1997] ). Even if this Court were to find that the report was inadmissible, there was sufficient evidence adduced at the inquest to support the award for future pain and suffering because the Special Referee saw the child's scar and published what he observed for the record (see e.g. Bischert v. Limousine Rental Serv., 33 A.D.2d 355, 357, 308 N.Y.S.2d 200 [3d Dept.1970] ).