Opinion
02-13-2015
Ann TOWNE, Plaintiff–Appellant, et al., Plaintiff, v. David E. BURNS, M.D. and Genesee Surgical Associates, P.C., Defendants–Respondents.
Trevett Cristo Salzer & Andolina, P.C., Rochester (Eric M. Dolan of Counsel), for Plaintiff–Appellant. Brown, Gruttadaro, Gaujean & Prato, LLC, Rochester (Jeffrey S. Albanese of Counsel), for Defendants–Respondents.
Trevett Cristo Salzer & Andolina, P.C., Rochester (Eric M. Dolan of Counsel), for Plaintiff–Appellant.
Brown, Gruttadaro, Gaujean & Prato, LLC, Rochester (Jeffrey S. Albanese of Counsel), for Defendants–Respondents.
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DeJOSEPH, JJ.
Opinion
MEMORANDUM: In this medical malpractice action, Ann Towne (plaintiff) appeals from an order insofar as it denied her motion to set aside the verdict of no cause of action and for a new trial in the interest of justice (see CPLR 4404[a] ). We reject plaintiff's contention that Supreme Court erred in allowing cross-examination of her expert regarding an out-of-state conviction of contempt. That conviction was based upon lies told by the expert to a judge during the course of the expert's trial testimony. Although the conviction was in 1983, “ ‘[c]ommission of perjury or other acts of individual dishonesty, or untrustworthiness ... will usually have a very material relevance, whenever committed’ ” (Donahue v. Quikrete Cos. [Appeal No. 2], 19 A.D.3d 1008, 1009, 796 N.Y.S.2d 781, quoting People v. Sandoval, 34 N.Y.2d 371, 377, 357 N.Y.S.2d 849, 314 N.E.2d 413 ).
We agree with plaintiff, however, that the court abused its discretion in curtailing her effort to rehabilitate her expert on redirect examination by asking him to explain the facts underlying the contempt conviction (see People v. Tait, 234 App.Div. 433, 439, 255 N.Y.S. 455, affd. 259 N.Y. 599, 182 N.E. 197 ; Sims v. Sims, 75 N.Y. 467, 472–473). We further conclude, however, that the error is harmless, inasmuch as “[t]he excluded [testimony] would not ‘have had a substantial influence in bringing about a different verdict’ ” (Czerniejewski v. Stewart–Glapat Corp., 269 A.D.2d 772, 773, 703 N.Y.S.2d 621 ). Thus, the limitations imposed by the court on the redirect examination of plaintiff's expert do not support setting aside the verdict in the interest of justice (see Butler v. County of Chautauqua, 277 A.D.2d 964, 964, 715 N.Y.S.2d 559 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.