Opinion
2005-929 KC.
Decided March 27, 2006.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Ellen Gesmer, J.), entered April 28, 2005. The judgment, entered upon a jury verdict, awarded plaintiff the principal sum of $165,000 as against defendant John M. Carlson, representing his proportionate share of the $330,000 verdict.
Judgment affirmed without costs.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
Plaintiff commenced this action to recover damages for personal injuries as a result of an accident involving the vehicle in which she was a passenger, operated by defendant Salvatore Moriello, and another vehicle, operated by defendant John M. Carlson. Following the liability phase of a bifurcated trial, the jury found each defendant to have been 50 per cent responsible for the accident. Plaintiff then settled with defendant Moriello, and the damages phase of the trial proceeded solely against defendant Carlson. At trial, plaintiff presented evidence that she sustained injuries to her neck and lower back (consisting of lumbar intervertebral disc syndrome, segmental dysfunction, and cervical and lumbar radiculopathy), as well as torn lateral and medial menisci in her left knee, which required arthroscopic surgery. The jury returned a verdict finding that plaintiff had sustained both "a significant limitation of use of a body function or system" as well as "a permanent consequential limitation of use of a body organ or member" (Insurance Law § 5102), and awarded her $165,000 for past pain and suffering and $165,000 for future pain and suffering over the course of 50.5 years. Defendant moved to set aside the jury verdict based on the trial court's failure to preclude plaintiff's doctors from testifying due to plaintiff's failure to exchange their medical reports, and on the additional ground that the verdict was contrary to the evidence and deviated materially from what was reasonable compensation. The trial court denied the motion in all respects, and judgment in the principal sum of $165,000, representing defendant John M. Carlson's proportionate share of the $330,000 verdict, was ultimately entered in favor of plaintiff.
Initially, we find that the trial court did not abuse its discretion in denying defendant's motion to preclude the testimony of Dr. Bartoli, plaintiff's treating chiropractor, and Dr. Wilen, plaintiff's orthopedic surgeon, because of the failure of plaintiff's counsel to comply with the rule governing the exchange of medical reports ( see 22 NYCRR 208.13). Plaintiff's counsel concededly did not provide defense counsel with a narrative report from the treating chiropractor and orthopedic surgeon, setting forth, as the rule directs, "a description of the injuries sustained, a diagnosis, and prognosis" ( 22 NYCRR 208.13 [b] [1]). Defense counsel, however, was in receipt of some of the office records, and did not object to the adequacy of those records until immediately before the damages phase of the trial. Indeed, a consent order entered into approximately one year prior to trial indicated that all medical reports had been furnished. Inasmuch as defense counsel did not address plaintiff's failure to provide him with the particular reports in issue until this late juncture in the litigation ( see e.g. Freeman v. Kirkland, 184 AD2d 331; Rhoden v. Montalbo, 127 AD2d 645; Valenti v. Chanice, 75 AD2d 850), it was appropriate for the court below to deny preclusion of the testimony of Dr. Bartoli and Dr. Wilen. Furthermore, notwithstanding the fact that some of the records and reports turned over by plaintiff did not specifically address plaintiff's prognosis, when taken as a whole, those reports and records gave defendant adequate notice of the doctors' prognosis for plaintiff's recovery.
Contrary to defendant's contention, the jury's determination that plaintiff had suffered both a significant and permanent injury within the meaning of Insurance Law § 5102 (d) was based upon a fair interpretation of the evidence ( see Cohen v. Hallmark Cards, 45 NY2d 493, 498; Nicastro v. Park, 113 AD2d 129, 134). Plaintiff testified that she experienced significant pain in her knee, that it buckled frequently, and that she was no longer able to engage in activities which she had done in the past. Her orthopedic surgeon testified that notwithstanding his performing surgery on her left knee, in which he repaired the damaged cartilage and menisci, she still had permanent damage to the knee joint, and that her knee would never be "one hundred percent."
On this record, it was reasonable for the jury to conclude that there was both a significant and permanent injury. Furthermore, it is noted that once a plaintiff has established a prima facie case and a jury has found that plaintiff sustained a serious injury in any threshold category, the plaintiff is entitled to recover for the remaining personal injuries resulting from the accident without establishing that every injury independently meets the threshold criteria ( see Preaston v. Massaro, 107 AD2d 742).
Finally, we find that the jury's award of damages for past and future pain and suffering was not excessive, as it did not deviate materially from what would be reasonable compensation ( see CPLR 5501 [c]; Van Ness v. New York City Tr. Auth., 288 AD2d 374).
Golia, J.P., Rios and Belen, JJ., concur.