CAMINITI v. EXTELL WEST 57TH STREET LLC (2024)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered July 17, 2023, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict and to order a new trial, unanimously affirmed, without costs.

The jury verdict finding that the violation of Labor Law § 240(1) did not proximately cause decedent's aortic dissection was not against the weight of the evidence (see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498–499 [1978]).  There is no basis to disturb the jury's crediting of defendants’ expert testimony over plaintiff's expert's conflicting testimony.

Decedent's primary care physician was properly impeached by his prior conviction on federal charges involving dishonesty and underlying facts (see CPLR 4513;  Frank v. McCutcheon, 29 AD3d 470, 470 [1st Dept 2006]).  Although the court should not have allowed extrinsic evidence of the physician's divorce proceeding and administrative appeal, we conclude that such error was not unduly prejudicial and does not warrant a new trial (see Haiyan Lu v. Spinelli, 44 AD3d 546, 547 [1st Dept 2007], lv denied 10 NY3d 716 [2008];  cf.  Badr v. Hogan, 75 N.Y.2d 629, 634–637 [1990]).

The court providently denied plaintiff's request for a missing witness charge with respect to defendants’ second expert witness, because the testimony that the expert was expected to give was already in the record through the testimony of defendants’ other expert and would have been cumulative (see Medina v. Samroeng Chownwai, 211 A.D.2d 526, 526–527 [1st Dept 1995]).  Although plaintiff pleaded an increased susceptibility to injury, she did not present any evidence at trial to warrant such a charge to the jury (see Rivera v. Kolsky, 164 AD3d 626, 628 [2d Dept 2018];  see generally PJI 2:283).