Summary
In Behan, the same intermediate appellate court held that a trial court erred when it specifically charged the jury that it could award damages for an aggravation of the plaintiff's pre-existing injury-which the Court did not do here-even when aggravation had not been pled.
Summary of this case from Campodonico v. Wal-Mart Stores E., LPOpinion
March 13, 1995
Appeal from the Supreme Court, Kings County (Held, J.).
Ordered that the judgment is reversed, on the law and as an exercise of discretion, and a new trial is granted on the issue of damages only, with costs to abide the event.
The plaintiff allegedly sustained injuries to his foot and back as a result of being struck in the head and having his foot run over by the defendants' van as it was backing into a parking space at the same time that the plaintiff stepped from the curb to cross the street.
Contrary to the plaintiff's contention, aggravation of a preexisting condition is an element of special damages which must be specially pleaded and proven before recovery therefor can be allowed (see, Von Sydow v. Long Beach Bus Co., 249 App. Div. 838; see also, De Mento v. Nehi Beverages, 55 A.D.2d 794, 795; Samuels v. New York Rys. Corp., 226 App. Div. 94; Roth v. Hudson Tr. Lines, 72 Misc.2d 999, 1002). Since the plaintiff did not allege such damages in the complaint or bill of particulars, the court erred when it charged the jurors over the defense counsel's objection that they could award damages to the plaintiff for the aggravation of his pre-existing degenerative disc condition (see, De Mento v. Nehi Beverages, supra; Von Sydow v. Long Beach Bus Co., supra).
In addition, considering the nature of the injuries alleged, the proof adduced at trial, and the issues involved, the court erred when it failed to submit to the jury a special verdict sheet containing a two-part interrogatory requiring a determination of (1) whether the accident caused a "serious injury" to the plaintiff's foot within the meaning of Insurance Law § 5102 (d), and (2) whether the accident caused the plaintiff's herniated discs (see, Brown v. Stark, 205 A.D.2d 725; Quaglio v. Tomaselli, 99 A.D.2d 487; see also, Steidel v. County of Nassau, 182 A.D.2d 809, 813).
Further, we find that the trial court improvidently exercised its discretion when it ruled that the defendants' expert in radiology was not qualified to render an opinion as to whether the plaintiff's herniated discs predated the accident (see, Fuller v. Preis, 35 N.Y.2d 425, 431; see also, Ariola v. Long, 197 A.D.2d 605; Humphrey v. Jewish Hosp. Med. Ctr., 172 A.D.2d 494; Joswick v. Lenox Hill Hosp., 161 A.D.2d 352; McLamb v Metropolitan Suburban Bus Auth., 139 A.D.2d 572). Any alleged lack of skill or expertise went to the weight to be given to the expert's testimony and not to its admissibility (see, Ariola v Long, supra; Sumowicz v. Gimbel Bros., 161 A.D.2d 314; De Luca v Kameros, 130 A.D.2d 705).
In view of the foregoing, we do not reach the appellants' remaining contentions. Sullivan, J.P., Balletta, Lawrence and Florio, JJ., concur.