Opinion
March 19, 1998
Appeal from the Supreme Court, Bronx County (George Friedman, J., and a jury).
Plaintiff teenager suffered a serious laceration to her thigh when, in the course of running through an unlit parking lot and admittedly not paying attention to her surroundings, she fell against metal protruding from an abandoned car, which vehicle she had previously observed. In these circumstances, the jury's apportionment of fault cannot be sustained under any fair interpretation of the evidence ( see, Schildkraut v. Eagle Lines, 126 A.D.2d 480, lv denied 70 N.Y.2d 605), and we modify accordingly. Moreover, the awards for past and future pain and suffering deviate materially from what is reasonable compensation under the circumstances (CPLR 5501 [c]; cf., Seidner v. Unger, 245 A.D.2d 362; Abdulai v. Roy, 232 A.D.2d 229), and we accordingly modify in this respect as well.
The photographs depicting the infant plaintiff's injury were not unduly inflammatory, and were properly admitted to help the jury evaluate the medical testimony and assess plaintiff's pain and suffering ( see, Axelrod v. Rosenbaum, 205 A.D.2d 722). Nor did plaintiffs' failure to produce two specific photographs prior to trial warrant the preclusion of those photographs at trial, despite defendant's pretrial demand for photographic evidence, where there is no indication that such failure was willful and defendant failed to show any resulting prejudice. The complained of cross-examination of a defense witness was appropriately sustained because, read in context, it elicited testimony for the proper purpose of impeachment, not the improper purpose of providing a lay witness's opinion on an issue to be decided by the jury.
Concur — Lerner, P. J., Sullivan, Rosenberger, Nardelli and Andrias, JJ.