Opinion
03-21-2017
Maria A. SANTANA, Plaintiff–Appellant, v. 3410 KINGSBRIDGE LLC, et al., Defendants–Respondents.
Melcer Newman PLLC, New York (Jeffrey B. Melcer of counsel), for appellant. Cascone & Kluepfel, LLP, Garden City (James K. O'Sullivan of counsel), for respondents.
Melcer Newman PLLC, New York (Jeffrey B. Melcer of counsel), for appellant.
Cascone & Kluepfel, LLP, Garden City (James K. O'Sullivan of counsel), for respondents.
ACOSTA, J.P., RENWICK, MANZANET–DANIELS, WEBBER, GESMER, JJ.
Judgment, Supreme Court, Bronx County (Lizbeth Gonzalez,
J.), entered June 22, 2015, after a jury trial, in favor of defendants, unanimously affirmed, without costs.
The jury's finding that there was no slippery condition on the stairs at the time of the plaintiff's accident was not against the weight of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ). While plaintiff's parade of witnesses testified consistently as to the existence of recurring conditions, the building's superintendent expressly denied the existence of such conditions and plaintiff has not identified any basis to disturb the jury's determination on this issue.
A trial court has "broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary" (Campbell v. Rogers & Wells, 218 A.D.2d 576, 579, 631 N.Y.S.2d 6 [1st Dept.1995] ). The court did not err in excluding certain photographs, alleged to depict an ephemeral wet and waxy condition, in the absence of testimony that they was "taken reasonably close to the time of the accident and that the condition at the time of the accident was substantially as shown in the photographs" (Melendez v. New York City Tr. Auth., 196 A.D.2d 460, 461, 601 N.Y.S.2d 489 [1st Dept.1993] ). As the photographs were close-ups of stairs, which could be located anywhere in the building, absent such testimony, it could not be determined whether they were the same stairs involved in the accident.
Plaintiff's objection to the admission of a surveillance videotape, on the eve of trial, is academic given that the jury never reached the issue of damages. Moreover, as the videotape is not part of the appendix, this Court cannot assess whether its admission constituted error. In any event, the timing of service was not improper, but rather a function of the need to conduct a further deposition and independent medical examination, which were made necessary by plaintiff's having undergone a second surgery after a trial date had already been set, and her treating physician had ample opportunity to review the videotape prior to testifying.
The narrative of the accident contained in a ambulance report, which was never introduced at trial, was properly precluded, and the court appropriately sustained objections to defense counsel's isolated questions as to whether plaintiff told the ambulance personnel that she had tripped (cf. Grant v. New York City Tr. Auth., 105 A.D.3d 445, 446, 963 N.Y.S.2d 63 [1st Dept.2013] ; Delgado v. City of New York, 128 A.D.2d 484, 513 N.Y.S.2d 440 [1st Dept.1987] ).
It cannot be determined, based upon the appendix, whether plaintiff's objections to the failure to grant missing witness charges as to the building's porter and a liability expert are preserved for appeal and whether plaintiff met her burden in seeking the charges (see Hamer v. City of New York, 106 A.D.3d 504, 510, 965 N.Y.S.2d 99 [1st Dept.2013] ; Germe v. City of New York, 211 A.D.2d 480, 621 N.Y.S.2d 548 [1st Dept.1995] ). Any error in denying missing witness charges as to defendants' medical experts, whose availability is not evidenced in the record, would be immaterial since the jury did not reach the issue of damages.
Plaintiff's request for a missing document charge was properly denied in the absence of evidence that she had requested the documents during discovery.
Finally, plaintiff's objection to defense counsel's conduct during the trial is largely, if not entirely, unpreserved, and unavailing. Defense counsel's statements as to plaintiff's treating physician's financial arrangement with plaintiff's counsel's firm constituted fair commentary on the evidence, and were within the wide latitude afforded on summation (see Gregware v. City of New York, 132 A.D.3d 51, 61, 15 N.Y.S.3d 21 [1st Dept.2015] ; cf. Berkowitz v. Marriott Corp., 163 A.D.2d 52, 53–54, 558 N.Y.S.2d 511 [1st Dept.1990] ).
We have considered plaintiff's remaining arguments and find them unavailing.