Opinion
No. 2010–801QC.
2011-12-21
Radner D. CLAIR, Jr., Respondent, v. CLIMATE WEATHERING, INC. and Ricardo Affan, Appellants.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered June 30, 2009. The judgment, upon a jury verdict, awarded plaintiff the principal sum of $60,000.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ.
ORDERED that the judgment is affirmed, without costs.
In this personal injury action, which was transferred to the Civil Court pursuant to CPLR 325(d), a bifurcated jury trial was held, and defendants do not, on appeal, contest the jury's finding in plaintiff's favor on the issue of liability. Rather, defendants contend that they are entitled to a new trial on damages because plaintiff's witness, his treating chiropractor, was improperly allowed to testify regarding plaintiff's disc bulges and herniations, and because plaintiff's request for a missing witness charge was improperly granted.
Defendants' contention regarding the chiropractor's testimony is raised for the first time on appeal and, therefore, is unpreserved for appellate review. In any event, this contention lacks merit. In Badke v. Barnett (35 A.D.2d 347 [1970] ), the defendant had argued that chiropractors, as a matter of law, should not be permitted to offer expert testimony on questions of diagnosis, prognosis and causal connection, because they lack the extensive training of a physician. The court held that a “chiropractor should ... be deemed competent to testify as an expert witness and express opinion as to the nature of a chiropractic ailment and its probable cause and duration ... It is a general rule that a chiropractor is competent to testify in a personal injury action, as an expert medical witness, concerning matters within the scope and profession of chiropractic” ( id. at 349). In the case at bar, plaintiff's treating chiropractor properly expressed his expert opinion as to the nature of plaintiff's chiropractic ailment and its probable cause and duration.
Defendants' contention that plaintiff's request for a missing witness charge was improperly granted, because the request was made after plaintiff had rested his case, lacks merit. The record on appeal indicates that plaintiff requested a missing witness charge prior to the re-direct testimony of defendants' sole witness—after it became apparent that defendants were not going to call its two examining physicians as witnesses at trial. We find that plaintiff's request was raised as soon as practicable, and before both sides had rested, so that the Civil Court could appropriately exercise its discretion and the parties could tailor their trial strategy to avoid substantial possibilities of surprise ( see People v. Gonzalez, 68 N.Y.2d 424, 427–428 [1986];People v. Lubrano, 43 AD3d 829 [2007];Carrero v. General Fork Lift Co., Inc., 36 AD3d 577 [2007];People v. Simon, 6 AD3d 733 [2004];People v. Wright, 2 AD3d 546 [2003] ).
Accordingly, the judgment is affirmed.