Opinion
October 26, 1970
In a negligence action to recover damages for personal and property injuries, etc., defendant appeals from so much of a judgment of the Supreme Court, Richmond County, entered September 24, 1969, as is in favor of plaintiff Rita Schricker upon a jury verdict and in favor of plaintiff Jack Rosen upon a directed verdict. Judgment reversed insofar as appealed from, on the law, and, as between plaintiffs Rita Schricker and Jack Rosen and defendant, action severed and new trial granted, with costs to abide the event. The questions of fact have not been considered. During the trial, plaintiffs called upon Dr. Henry Briggin, an orthopedic specialist, to establish, inter alia, the causal connection between the accident and injuries. At the request of plaintiffs' counsel, and over objection by defendant, the trial court permitted Dr. Briggin to testify out of the presence of the jury. In doing so the court said: "At this time, at the request of the attorney for the plaintiff, the Court has requested that Dr. Briggin appear before the Court for the purpose of taking an examination, for his testimony; and, having been subpoenaed, at this time, the doctor's testimony will be taken, and the Corporation Counsel, through its attorney, Mr. Garavente, shall have the right to cross-examine, and then such deposition shall be read to the jury at a proper time, if seen fit by the plaintiff or the defendant. * * * The Court will permit Dr. Briggin to testify in that this Court has had many applications before it wherein such doctor was given such permission because of the doctor's presumed phobia, number one, of testifying in jury trials; and, where medical testimony has been submitted that it might be very dangerous to the doctor's health to take him into court to testify in a trial. And this Court, having personal knowledge of the doctor's physical disability, and also his attitude, felt that it would be much more provident to permit him to make a deposition by way of the court stenographer, rather than have him appear in the trial itself." Defendant, though proffered the opportunity to cross-examine on the taking of the deposition, declined to do so. Plaintiffs were then permitted to read the doctor's deposition to the trial jury. We believe this to be prejudicial error. For one thing, CPLR 3102 (subd. [d]), which provides for disclosure after commencement of trial, states that "during and after trial, disclosure may be obtained only by order of the trial court on notice" (emphasis supplied). The notice contemplated by the statute was not given here. Second, it does not appear that plaintiffs were unaware of Dr. Briggin's claimed inability to testify before a jury. That it was no secret is evident from the court's statement above quoted. Moreover, if special circumstances did exist, plaintiffs had the opportunity to take the deposition of their doctor prior to trial pursuant to CPLR 3101 (subd. [a], par. [4]). They failed to do so. Finally, the testimony of a key witness was presented without the jury being able to see and hear him. Under the circumstances here, this should not have been permitted (see 3 Weinstein-Korn-Miller, N Y Civ. Prac., par. 3117.08). It was also error for the court, prior to giving its charge, to direct a verdict in favor of plaintiff Jack Rosen, the absentee owner of the automobile in which plaintiff Rita Schricker was a passenger, on the authority of Mills v. Gabriel ( 259 App. Div. 60, affd. 284 N.Y. 755). In essence, the holding in Mills was that former section 59 (now § 388) of the Vehicle and Traffic Law effected no change in the common-law rule permitting an action by an absentee owner for damages to his motor vehicle. The owner could recover from third persons under the circumstances disclosed in Mills, namely, where the trial court found "that both operators were negligent" (p. 61). At bar, by directing a verdict for the absentee owner, the court was ruling, as a matter of law, that defendant was negligent. This was a fact question that should have been left for the jury. Christ, P.J., Rabin, Munder, Latham and Benjamin, JJ., concur.