Summary
identifying no error in witness's use of documents to refresh recollection
Summary of this case from Livingston v. KellyOpinion
276
March 15, 2002.
Appeal from an order and judgment (one document) of Supreme Court, Erie County (Rath, J.), entered June 11, 2001, upon a jury verdict in favor of defendants.
De Marie Schoenborn, P.C., Buffalo (Joseph De Marie of counsel), for plaintiffs-appellants.
O'Brien Boyd, P.C., Buffalo (Mark G. Giangreco of counsel), for defendants-respondents.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
We reject plaintiffs' contention that the verdict of no cause of action is against the weight of the evidence. "[A] jury's verdict should not be set aside as against the weight of [the] evidence unless it is palpably wrong and there is no fair interpretation of the evidence to support the jury's conclusion [citation omitted] or if the verdict is one reasonable persons could have rendered after receiving conflicting evidence" ( Petrovski v. Fornes, 125 A.D.2d 972, 973, lv denied 69 N.Y.2d 608). A fair interpretation of the evidence supports the jury's conclusion that the accident was not a substantial factor in causing injury to Salvatore Sabia (plaintiff). Contrary to plaintiffs' contention, Supreme Court properly permitted defendants' counsel to use the medical records of plaintiff during cross-examination to refresh his recollection with respect to his prior medical history ( see, Prince, Richardson on Evidence § 6-214, at 362 [Farrell 11th ed]). We reject plaintiffs' contention that the court should have sua sponte required that summations be recorded ( cf., Roman v. Bronx-Lebanon Hosp. Ctr., 51 A.D.2d 529, 530, lv denied 39 N.Y.2d 709). Because summations were not recorded, we cannot review plaintiffs' further contention that during summation defendants' counsel improperly commented on matters not in evidence ( see, Wilcox v. Morrow, 226 A.D.2d 1077; Baker v. Leuner Trucking, 54 A.D.2d 654).