Opinion
December 3, 1992
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
Contrary to defendant's contention, plaintiff established a prima facie case that the City's off duty police officer was acting within the scope of his employment at the time of the shooting (see, Collins v City of New York, 11 Misc.2d 76, affd 8 A.D.2d 613, affd 7 N.Y.2d 822). The jury's determination that the officer acted negligently in cleaning his revolver, leading to the accidental shooting is supported by the record (see, Cohen v Hallmark Cards, 45 N.Y.2d 493), and thus the jury's finding of liability will not be disturbed. Any error by the trial court in sustaining plaintiff's objection to the City's introduction in evidence of a police report concerning an interview had with plaintiff three months after the shooting was harmless since the detective who prepared and filed the report testified at trial concerning the statements plaintiff made during the interview and stated that his testimony on the matter did not vary significantly from the content of the report (see, Mashley v Kerr, 63 A.D.2d 1084, affd 47 N.Y.2d 892).
Finally, the IAS Court did not abuse its discretion in, inter alia, modifying that portion of the jury's award for future pain and suffering by ordering a new trial on the issue of future pain and suffering unless plaintiff stipulated to a reduction of the $5 million award to $1 million. Since plaintiff stipulated to the entry of the reduced award, the cross appeal must be dismissed (CPLR 5511; Rumph v Gotham Ford, 44 A.D.2d 792, 792-793, lv denied 34 N.Y.2d 519, appeal dismissed 34 N.Y.2d 952). However, the matter is reviewable on appeal pursuant to defendant City's appeal from the judgment (CPLR 5501 [a] [5]; supra, at 793).
Concur — Sullivan, J.P., Milonas, Wallach, Ross and Asch, JJ.