Opinion
2018–03355 Index No. 944/15
10-06-2021
Shoshana BENGUIGUI, appellant, v. Mark David RACER, respondent, et al., defendants.
Lester B. Herzog, Brooklyn, NY, for appellant. Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Robert J. Gironda of counsel), for respondent.
Lester B. Herzog, Brooklyn, NY, for appellant.
Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (Robert J. Gironda of counsel), for respondent.
MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Carolyn E. Wade, J.), entered February 7, 2018. The judgment, upon a jury verdict finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, is in favor of the defendant Mark David Racer and against the plaintiff dismissing the complaint insofar as asserted against that defendant. ORDERED that the judgment is reversed, on the law, with costs, the complaint is reinstated insofar as asserted against the defendant Mark David Racer, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages.
This action arises from a multivehicle accident on November 1, 2012. The plaintiff commenced the instant action against, among others, the defendant Mark David Racer (hereinafter the defendant) to recover damages for personal injuries that she allegedly sustained in the accident. After a trial on the issue of liability, the jury returned a verdict finding the defendant 100% at fault in the happening of the accident. After a trial on the issue of damages, the jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. Thereafter, the plaintiff made an application, in effect, pursuant to CPLR 4404(a), to set aside the verdict. The Supreme Court denied the plaintiff's application, and entered a judgment in favor of the defendant and against the plaintiff dismissing the complaint insofar as asserted against the defendant. The plaintiff appeals.
At the trial on the issue of damages, the plaintiff called one of her treating physicians, Irving Friedman, as a witness. The Supreme Court erred in granting the defendant's application to preclude Friedman's testimony concerning the cervical and thoracic regions of the plaintiff's spine based upon a conceded error Friedman made wherein he misidentified the MRI of the plaintiff's spine (see Sadek v. Wesley, 27 N.Y.3d 982, 984, 32 N.Y.S.3d 42, 51 N.E.3d 553 ; Troyano v. Burris, 196 A.D.3d 525, 147 N.Y.S.3d 419 ). Under the circumstances of this case, any defects in Friedman's opinions or the foundations on which those opinions are based "should go to the weight to be accorded that evidence by the trier of fact, not to its admissibility in the first instance" ( Sadek v. Wesley, 27 N.Y.3d at 984, 32 N.Y.S.3d 42, 51 N.E.3d 553 ; see Troyano v. Burris, 196 A.D.3d 525, 147 N.Y.S.3d 419 ).
In addition, the Supreme Court erred in precluding Friedman's testimony regarding future treatment and possible need for future surgery, as Friedman had addressed these issues in his medical reports (see Butler v. Grimes, 40 A.D.3d 569, 570, 833 N.Y.S.2d 398 ; Montenegro v. Richfield Props., 269 A.D.2d 505, 506, 704 N.Y.S.2d 497 ).
Moreover, the Supreme Court erred in precluding the admission of the medical records of another of the plaintiff's treating physicians, Rubin Ingber, under the business records exception to the hearsay rule. The defendant waived his right to any objection to the admission of the records as business records, as he failed to timely object after having been served with the plaintiff's notice of her intention to enter the documents into evidence pursuant to CPLR 3122–a (see Karen E.A. v. 545 W. 146th St., Inc., 148 A.D.3d 464, 464, 49 N.Y.S.3d 404 ; Siemucha v. Garrison, 111 A.D.3d 1398, 1400, 975 N.Y.S.2d 518 ). Additionally, the testimony of Ingber's office manager laid a proper foundation for the admission of these records (see CPLR 4518[a] ; Berkovits v. Chaaya, 138 A.D.3d 1050, 1051, 31 N.Y.S.3d 531 ; cf. Dayanim v. Unis, 171 A.D.2d 579, 580, 567 N.Y.S.2d 673 ).
Where, as here, there is a danger that substantial justice has not been done because improper evidentiary rulings tainted the jury verdict, a new trial is warranted (see Smith v. Lipsky, 189 A.D.3d 1104, 1105, 133 N.Y.S.3d 857 ; Langhorne v. County of Nassau, 40 A.D.3d 1045, 1048, 839 N.Y.S.2d 94 ). Accordingly, we remit the matter to the Supreme Court, Kings County, for a new trial on the issue of the plaintiff's damages.
In light of our determination, we need not reach the plaintiff's remaining contention.
DILLON, J.P., IANNACCI, CHRISTOPHER and WOOTEN, JJ., concur.