Opinion
17052-, 17053 Index No. 22051/13E Case Nos. 2021–04808, 2021–04809
01-10-2023
Nanette BASDEN, Plaintiff–Appellant–Respondent, v. LIBERTY LINES TRANSIT, INC., et al., Defendants–Respondents–Appellants.
Michael Gunzburg P.C., New York (Michael Gunzburg of counsel), for appellant-respondent. Carol R. Finocchio, Water Mill, for respondents-appellants.
Michael Gunzburg P.C., New York (Michael Gunzburg of counsel), for appellant-respondent.
Carol R. Finocchio, Water Mill, for respondents-appellants.
Acosta, P.J., Webber, Moulton, Shulman, Higgitt, JJ.
Judgment, Supreme Court, Bronx County (Julia Rodriguez, J.), entered October 15, 2021, after a jury trial on damages, awarding plaintiff $140,000 for past pain and suffering, $50,000 for future pain and suffering over 10 years, and $110,000 for future medical expenses, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial on damages.
Although the MRI films taken of plaintiff in 2002 in connection with a prior accident were not produced at trial, the reports from those films were properly admitted as secondary evidence, as the affidavit of an employee of the MRI facility sufficiently explained that the MRI films were unavailable due to a routine destruction of medical records (see Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 644, 620 N.Y.S.2d 797, 644 N.E.2d 1353 [1994] ; Dhillon v. Bryant Assoc., 26 A.D.3d 155, 157, 809 N.Y.S.2d 25 [1st Dept. 2006] ). The physician who read the films and prepared the reports testified that the reports were written by him as part of his custom and practice in reading films, and was available for cross examination at trial (compare Murphy v. Columbia Univ., 4 A.D.3d 200, 203, 773 N.Y.S.2d 10 [1st Dept. 2004] ). Similarly, the IME report from the prior accident was properly admitted because the requisite foundation was laid through the testimony of the examining physician, who was subject to cross examination.
The court, however, should not have allowed into evidence the operative and pathology reports from the 2002 surgical procedure that were contained in the file of the no-fault insurance carrier. While the no-fault file was properly admitted as a business record under CPLR 4518(a), the reports therein were not created by the carrier and, thus, were inadmissible (see West Val. Fire Dist. No. 1 v. Village of Springville, 294 A.D.2d 949, 950, 743 N.Y.S.2d 215 [4th Dept. 2002] ; Standard Textile Co. v. National Equip. Rental, 80 A.D.2d 911, 911, 437 N.Y.S.2d 398 [2d Dept .1981] ). There was no evidence of a relationship between the carrier and the surgeon or the hospital where the procedure was performed so as to permit the reports to remain as part of the carrier's file (compare People v. Cratsley, 86 N.Y.2d 81, 90–91, 629 N.Y.S.2d 992, 653 N.E.2d 1162 [1995] ; Merrill Lynch Bus. Fin. Servs. Inc. v. Trataros Constr., Inc., 30 A.D.3d 336, 337, 819 N.Y.S.2d 223 [1st Dept. 2006], lv denied 7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006] ; Hochhauser v. Electric Ins. Co., 46 A.D.3d 174, 180–183, 844 N.Y.S.2d 374 [2d Dept. 2007] ).
Plaintiff's contention that the court erred in precluding a video depicting the accident is unpreserved. The court, however, erred in disallowing plaintiff to introduce eyewitness testimony of the accident, as such would have aided the jury in assessing the severity of the impact between the bus and plaintiff, and therefore her alleged injuries.
Because the above errors, taken together, were not harmless, a new trial on damages is required (see Murphy, 4 A.D.3d at 203, 773 N.Y.S.2d 10 ). In view of the foregoing, the issue of the adequacy of the award is academic.