Opinion
October 6, 1998
Appeal from the Supreme Court, New York County (Louise Gruner Gans, J.).
Exclusion of evidence concededly not in compliance with the notice requirement of 22 NYCRR 202.17 was not an improvident exercise of the trial court's discretion ( see, McClain v. Lockport Mem. Hosp., 236 A.D.2d 864, 865, lv denied 89 N.Y.2d 817), and exclusion of conceded hearsay was appropriate, despite CPLR 4532-a, since defendant admittedly did not afford plaintiff the required notice ( see, Adams v. Romero, 227 A.D.2d 292, 293). The trial court appropriately found the issue of security in defendant's bar to warrant the receipt of expert testimony ( see, e.g., Ricard v. Roseland Amusement Dev. Corp., 215 A.D.2d 240, 241, appeal dismissed 86 N.Y.2d 837, lv denied 87 N.Y.2d 805), and appropriately declined to charge on implied assumption of the risk, since the evidence showed that plaintiff had not engaged in the conduct at issue fully cognizant of the risk it entailed ( cf., Fernandez v. City of New York, 247 A.D.2d 212). The awards for future lost income and future pain and suffering, as reduced on motion by the trial court, are appropriate. We have considered defendant-appellant's remaining arguments and those made by plaintiff in favor of additur, and find them to be without merit.
Concur — Sullivan, J. P., Milonas, Nardelli and Tom, JJ.