Opinion
2013-06-19
Laura DORAN, appellant, v. John McNULTY, et al., respondents.
Rosenberg & Gluck LLP, Holtsville, N.Y. (Lisa J. Borsella of counsel), for appellant. Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Sim R. Shapiro and Margot L. Ludlam of counsel), for respondents.
Rosenberg & Gluck LLP, Holtsville, N.Y. (Lisa J. Borsella of counsel), for appellant. Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Sim R. Shapiro and Margot L. Ludlam of counsel), for respondents.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Whelan, J.), entered November 10, 2011, which, upon a jury verdict on the issue of liability finding the defendants 100% at fault in the happening of the accident, a jury verdict on the issue of damages awarding her no damages, and the denial of her motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of damages, is in favor of the defendants and against her dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiff, who was then 31 years old, slipped and fell on premises owned by the defendants, and commenced this action to recover damages for alleged injuries to her lower back. Following a jury verdict against the defendants on the issue of liability, the parties proceeded to a trial on the issue of damages. At the damages trial the plaintiff testified that she had experienced, and been treated for, pain in her lower back since she was 16 years old, but the pain had become more intense and constant after the accident. The plaintiff's expert testified that the fall had aggravated the plaintiff's preexisting condition. For the defense, a radiologist who reviewed the MRI films of the plaintiff's back taken after the accident testified that the plaintiff's condition could not have been caused by an acute event such as a fall, and was instead the result of the plaintiff's preexisting degenerative disc disease. An orthopedic surgeon called by the defendants testified that the accident aggravated the preexisting degenerative changes in the plaintiff's back, but that the plaintiff had “no radicular symptoms” as a result of the accident. The jury awarded the plaintiff no damages.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;Piazza v. Corporate Bldrs. Group, Inc., 73 A.D.3d 1006, 1006–1007, 900 N.Y.S.2d 673). “ It is for the jury to make determinations as to the credibility of the witnesses, and great deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses” ( Exarhouleas v. Green 317 Madison, LLC, 46 A.D.3d 854, 855, 847 N.Y.S.2d 866;see Lopreiato v. Scotti, 101 A.D.3d 829, 954 N.Y.S.2d 895;Verizon N.Y., Inc. v. Orange & Rockland Utils., Inc., 100 A.D.3d 983, 954 N.Y.S.2d 641;Salony v. Mastellone, 72 A.D.3d 1060, 1061, 901 N.Y.S.2d 87).
Here, a fair interpretation of the evidence supported the jury's determination ( see Verizon N.Y., Inc. v. Orange & Rockland Utils., Inc., 100 A.D.3d 983, 954 N.Y.S.2d 641;Piazza v. Corporate Bldrs. Group, Inc., 73 A.D.3d at 1006–1007, 900 N.Y.S.2d 673;Salony v. Mastellone, 72 A.D.3d at 1061, 901 N.Y.S.2d 87). While the plaintiff correctly notes that the orthopedic surgeon called by the defendants testified that the subject accident aggravated the preexisting degenerative changes in the plaintiff's back, in light of the conflicting expert testimony at trial, the jury could accept or reject the testimony of a particular expert ( see Alston v. Sunharbor Manor, LLC, 48 A.D.3d 600, 602, 854 N.Y.S.2d 402;Ross v. Mandeville, 45 A.D.3d 755, 757, 846 N.Y.S.2d 276;Ventriglio v. Active Airport Service, Inc., 234 A.D.2d 451, 453, 651 N.Y.S.2d 162).
The plaintiff failed to timely submit a supplemental bill of particulars ( seeCPLR 3043[b] ). Accordingly, the Supreme Court did not improvidently exercise its discretion in precluding the admission of additional claims of damages at trial ( see Salgado v. Town Sports Intl., 73 A.D.3d 898, 899, 901 N.Y.S.2d 325;Pauling v. Glickman, 232 A.D.2d 465, 466, 648 N.Y.S.2d 339).
The Supreme Court did not improvidently exercised its discretion in precluding the plaintiff's counsel from questioning a defense expert witness about a collateral matter which had no relevance to any issue in the case ( see Perkins v. Murphy, 7 A.D.3d 500, 500–501, 775 N.Y.S.2d 591;Prendergast v. Patel, 301 A.D.2d 508, 509, 753 N.Y.S.2d 382;cf. Castillo v. 62–25 30th Ave. Realty, LLC, 74 A.D.3d 1116, 904 N.Y.S.2d 105; Platovsky v. City of New York, 275 A.D.2d 699, 700, 713 N.Y.S.2d 358).