GREENE v. XEROX CORPORATION

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Supreme Court, Appellate Division, Fourth Department, New York.

George W. GREENE, Sr., and Virginia Greene, Appellants, v. XEROX CORPORATION, Respondent.

XEROX CORPORATION, Third-Party Plaintiff, v. DIDIS CORPORATION, Third-Party Defendant-Respondent et al., Third-Party Defendant.

Decided: November 19, 1997

Before GREEN, J.P., and LAWTON, WISNER, BALIO and BOEHM, JJ. Moran and Kufta, P.C. (Gregory T. Phillips) by James Moran, Rochester, for Plaintiffs-Appellants. Martin & Iati (Debra A. Martin, of counsel), Rochester, for Third-Party Defendant-Respondent.

After trial, the jury awarded damages to George W. Greene, Sr. (plaintiff), for past and future loss of earnings and past and future pain and suffering.   No damages were awarded to plaintiff Virginia Greene on her derivative cause of action.   Supreme Court previously had granted plaintiffs' motion for partial summary judgment on the issue of liability.

 We reject the contention of plaintiffs that the awards to plaintiff for past and future loss of earnings “deviate[ ] materially from what would be reasonable compensation” (CPLR 5501[c] ).  The award for past loss of earnings is appropriate in light of the expert testimony regarding plaintiff's earning capacity during the three years before trial.   Similarly, the award for future loss of earnings is appropriate in light of the expert testimony that plaintiff's injuries were caused in part by conditions unrelated to the accident and the low estimate of average hours worked per year that plaintiffs' expert used in calculating the future loss of earnings.

 By not raising an objection to the verdict before the jury was discharged, plaintiffs failed to preserve for our review their contention that the failure of the jury to award plaintiff Virginia Greene damages on her derivative cause of action is inconsistent with the award to plaintiff (see, Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081;  Stangl v. Compass Transp., 221 A.D.2d 909, 635 N.Y.S.2d 376).   In any event, the verdict is supported by a reasonable view of the evidence and is not inconsistent as a matter of law (see, Silverstein v. Harmonie Club of City of N. Y., 173 A.D.2d 378, 379, 569 N.Y.S.2d 965).

 The court properly permitted defendant's vocational rehabilitation expert to give opinion testimony based upon a labor market survey he conducted by telephone with prospective employers.   The general rule that opinion evidence “ ‘must be based on facts in the record or personally known to the witness' ” (Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516, quoting Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348, rearg. denied 6 N.Y.2d 882, 188 N.Y.S.2d 1027, 160 N.E.2d 96) is subject to an exception where, as here, the opinion is based upon data “of a kind accepted in the profession as reliable in forming a professional opinion” (People v. Sugden, 35 N.Y.2d 453, 460, 363 N.Y.S.2d 923, 323 N.E.2d 169;  see, Serra v. City of New York, 215 A.D.2d 643, 644, 627 N.Y.S.2d 699;  Nandy v. Albany Med. Ctr. Hosp., 155 A.D.2d 833, 834, 548 N.Y.S.2d 98).   The contention of plaintiffs that the market survey is not the kind of evidence considered by the profession to be reliable is belied by the fact that their own vocational rehabilitation expert based his opinions upon similar hearsay information.

 The court did not err in requiring plaintiff to submit to a “functional capacity evaluation” and in denying plaintiffs' motion in limine to suppress the report of the evaluation.   Plaintiffs placed the capability of plaintiff to engage in future employment directly in controversy (see, CPLR 3121[a];  see generally, Koump v. Smith, 25 N.Y.2d 287, 294, 303 N.Y.S.2d 858, 250 N.E.2d 857).   The further contention of plaintiffs that the evaluation was improper because a physical therapist administered the tests underlying the evaluation is without merit.   The physical therapist conducted the tests under the direction of Dr. John A. Orsini, a physician specializing in industrial injury rehabilitation and functional capacity evaluations (see, Antonelli v. Yale Materials Handling Corp., 239 A.D.2d 951, 660 N.Y.S.2d 240;  Paris v. Waterman S.S. Corp., 218 A.D.2d 561, 563-564, 630 N.Y.S.2d 716).   Although Dr. Orsini twice stepped out of the examining room when he was paged, plaintiffs were not prejudiced thereby;  the court precluded Dr. Orsini from testifying regarding any tests performed when he was not present.   The absence of the signature of Dr. Orsini on the functional capacity evaluation is of no moment in light of his sworn statement that the omission was “a mere office oversight”.   Further, even assuming, arguendo, that the court erred in admitting the report, such error was harmless.   Dr. Orsini's opinion, based upon the evaluation, that plaintiff was capable of performing “light duty” did not prejudice plaintiffs in light of the testimony of plaintiffs' expert that plaintiff was capable of performing “medium-type work” (see, Golson v. Addei, 216 A.D.2d 268, 628 N.Y.S.2d 151;  Kutanovski v. DeCicco, 152 A.D.2d 540, 541, 543 N.Y.S.2d 476).

Because it is raised for the first time in plaintiffs' reply brief, the contention that the court improperly restricted the cross-examination of a witness is not properly before us (see, O'Sullivan v. O'Sullivan, 206 A.D.2d 960, 961, 614 N.Y.S.2d 828;  see also, State Farm Fire & Cas. Co. v. LiMauro, 103 A.D.2d 514, 521-522, 481 N.Y.S.2d 90, affd. 65 N.Y.2d 369, 492 N.Y.S.2d 534, 482 N.E.2d 13).

Judgment unanimously affirmed without costs.

MEMORANDUM:

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