Opinion
CA 02-02559
June 13, 2003.
Appeal from that part of an order of Supreme Court, Steuben County (Furfure, J.), entered January 29, 2002, that denied defendants' motion to set aside the verdict.
DAVIDSON O'MARA, P.C., ELMIRA (DONALD S. THOMSON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
PAUL A. ARGENTIERI, HORNELL, FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum:
Defendants appeal from a judgment entered on a jury verdict awarding Randall D. Dailey, Sr. (plaintiff) $240,000 in damages on a personal injury claim. Plaintiffs cross-appeal from that part of an order denying their cross motion to set aside the verdict insofar as it awarded plaintiff's wife no damages on her derivative claim. In the exercise of our discretion, we treat plaintiffs' notice of appeal as one taken from the final judgment ( see CPLR 5520 [c]; DiCesare v. Glasgow, 295 A.D.2d 1007, 1008) and we dismiss the separate appeal of defendants from that part of the order denying their motion to set aside the verdict ( see Smith v. Catholic Med. Ctr. of Brooklyn Queens, 155 A.D.2d 435; see also CPLR 5501 [a] [1]).
Plaintiffs commenced this action to recover damages for injuries allegedly sustained by plaintiff in a motor vehicle accident in March 1996. Plaintiffs alleged that a motor vehicle operated by Patricia Keith (defendant) ran a stop sign and collided with the motor vehicle operated by plaintiff. Contrary to the contention of defendants, Supreme Court did not err in refusing to allow them to use defendant's own deposition pursuant to CPLR 3117(a)(3) (ii) as direct evidence on the issue of liability. Although defendant had recently moved to Texas, her absence from the State and refusal to return for trial were voluntary, notwithstanding her change in employment and fear of flying. The court's exercise of discretion under CPLR 3117 is reviewable only for "clear abuse" ( Feldsberg v. Nitschke, 49 N.Y.2d 636, 643). Given "the law's preference for oral testimony in open court" (Siegel, N.Y. Prac 358, at 559) and all the relevant facts and circumstances, we perceive no such abuse of discretion here.
We further conclude that the court properly denied defendants' motion to preclude plaintiffs' expert from testifying. Contrary to defendants' contentions, plaintiffs' belated disclosure of the expert was not intentional or willful ( see Cutsogeorge v. Hertz Corp., 264 A.D.2d 752, 753-754; Aversa v. Taubes, 194 A.D.2d 580, 582) and "[t]he expert testimony offered no surprises" ( Lillis v. D'Souza, 174 A.D.2d 976, 976, lv denied 78 N.Y.2d 858). Furthermore, "any potential prejudice to the defendants could have been alleviated by * * * an adjournment" ( Shopsin v. Siben Siben, 289 A.D.2d 220, 221), which they failed to request. Defendants' further contention that the expert should not have been allowed to testify because he did not review plaintiff's medical records is not supported by the record. Defendants' additional contentions concerning plaintiffs' expert are not preserved for our review ( see CPLR 4017; 5501 [a] [3]).
We further reject defendants' contention that the court erred in admitting plaintiff's certified medical records in evidence ( see Maxcy v County of Putnam, 178 A.D.2d 729, 730, lv dismissed 80 N.Y.2d 826). We also conclude that defendants' request for a missing witness charge with respect to plaintiff's treating physicians was not timely ( see Thomas v. Triborough Bridge Tunnel Auth., 270 A.D.2d 336, 337-338; cf. Adkins v. Queens Van-Plan, 293 A.D.2d 503, 504). Furthermore, to the extent that defendants contend that the court erred in charging the jury on the issue of serious injury, that contention is not preserved for our review ( see CPLR 4110-b).
Defendants also contend that they were denied a fair trial by comments made by plaintiffs' counsel on summation allegedly "implor[ing] the jury to sit in the shoes of this poor plaintiff." Defendants failed to object to the comments when they were made and thus defendants' contention is not preserved for our review ( see Padilla v. Style Mgt. Co., 256 A.D.2d 27). In any event, in response to defendants' belated objection after summations were completed, the court gave a curative instruction alleviating any possible prejudice ( see Blanar v. Dickinson, 296 A.D.2d 431; Bacigalupo v. Heathshield, 231 A.D.2d 538, 539). We further reject defendants' contention that comments made by plaintiffs' counsel on summation concerning defendants' failure to call any expert witnesses were improper; the remarks were fair comment in response to remarks by defense counsel ( see Boshnakov v. Board of Educ. of Town of Eden, 277 A.D.2d 996, lv denied 96 N.Y.2d 703). Finally, we reject defendants' contention that the judgment should be reversed as a result of cumulative error.
On their cross appeal, plaintiffs contend that the jury's failure to award any damages on the derivative claim is inconsistent with the verdict in favor of plaintiff and thus the court erred in denying their cross motion to set aside the verdict. The court, however, properly denied the cross motion on the ground that plaintiffs failed to raise that alleged inconsistency before the jury was discharged ( see Bowes v. Noone, 298 A.D.2d 859, 860-861, lv denied 99 N.Y.2d 506; see also Everding v. Bombard, 272 A.D.2d 937, 938).