Opinion
13163 Index No. 22599/14 Case No. 2019-5310
02-18-2021
Sorrell VELEZ, As Administrator of the Estate of Juan Velez, Plaintiff–Respondent, v. Kandarpo ROY et al., Defendants–Appellants.
McGivney, Kluger, Clark & Intoccia, P.C., New York (Stephen B. Toner of counsel), for appellants. Roth & Roth, LLP, New York (Elliot Shields of counsel), for respondent.
McGivney, Kluger, Clark & Intoccia, P.C., New York (Stephen B. Toner of counsel), for appellants.
Roth & Roth, LLP, New York (Elliot Shields of counsel), for respondent.
Renwick, J.P., Kern, Singh, Shulman, JJ.
Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered June 5, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion to set aside the jury verdict on the issue of liability, unanimously affirmed, without costs.
The decedent died a short while after being struck by defendants' vehicle. The jury's finding that the decedent experienced pain and suffering before he died is supported by a passerby's testimony that the decedent was conscious for a total of about 20 to 30 seconds and plaintiff's expert's testimony that the decedent would have felt pain and suffering while conscious (see Oates v. New York City Tr. Auth., 138 A.D.3d 470, 30 N.Y.S.3d 606 [1st Dept. 2016], affd 28 N.Y.3d 1046, 43 N.Y.S.3d 245, 65 N.E.3d 1280 [2016] ; Filipinas v. Action Auto Leasing, 48 A.D.3d 333, 851 N.Y.S.2d 550 [1st Dept. 2008] ).
The trial court providently exercised its discretion in admitting into evidence a copy of the surveillance video footage of the accident. The fact that the copy was produced by the NYPD through a Freedom of Information Law Request and the investigating detective's testimony that it was the same footage that he had viewed on the original video constitute sufficient authentication (see People v. Reed, 169 A.D.3d 573, 574, 95 N.Y.S.3d 81 [1st Dept. 2019] ).
Plaintiff's expert disclosure notice disclosed in "reasonable detail" the substance of the expert's anticipated testimony ( CPLR 3101[d][1][i] ) by setting forth the evidence on which the expert would base his opinion, including the autopsy report, and that the expert would opine that the decedent experienced conscious pain and suffering before he died (see also Tate–Mitros v. MTA N.Y. City Tr., 144 A.D.3d 454, 456, 41 N.Y.S.3d 214 [1st Dept. 2016] ). There is no requirement that an expert set forth the specific facts and opinions that will be encompassed in his or her anticipated testimony ( Conway v. Elite Towing & Flatbedding Corp., 135 A.D.3d 893, 894, 22 N.Y.S.3d 911 [2d Dept. 2016] ).
Plaintiff's counsel's complained-of statements to the jury during summation were in response to defense counsel's comments to the jury, and did not " ‘create a climate of hostility that so obscured the issues as to have made the trial unfair’ " ( Wilson v. City of New York, 65 A.D.3d 906, 908, 885 N.Y.S.2d 279 [1st Dept. 2009] [internal quotation marks omitted]; see also Chappotin v. City of New York, 90 A.D.3d 425, 933 N.Y.S.2d 856 [1st Dept. 2011], lv denied 19 N.Y.3d 808, 2012 WL 2428540 [2012] ).