BALSZ v. Rafael Perez, et al., Defendants. (1998)

Judgment, Supreme Court, New York County (Norman Ryp, J., and a jury), entered October 17, 1997, insofar as appealed from, in favor of plaintiff and against defendant-appellant in the principal amount of $1,070,865, unanimously affirmed, without costs.

 Defendant's argument that the trial court erred in permitting plaintiff to use hearsay medical reports to bolster the testimony of her medical expert was not preserved by objection on that specific ground (see, Gunnarson v. State of New York, 95 A.D.2d 797, 798, 463 N.Y.S.2d 853), and in any event is without merit, since the hearsay contained in these reports was not the primary basis for plaintiff's expert's opinion (cf., O'Shea v. Sarro, 106 A.D.2d 435, 437, 482 N.Y.S.2d 529).   Nor is there merit to the related argument with respect to plaintiff's cross-examination of defendant's expert, who had been asked to comment on these very same reports in his direct examination.   Defendant's argument that it was deprived of a fair trial by plaintiff's summation was not preserved by a motion for a mistrial, or by specific objections to most of the comments in question, and where there were objections, they were sustained with appropriate curative instructions.   In any event, the summation did not create a climate of hostility that so obscured the issues as to have made the trial unfair (see, Rohring v. City of Niagara Falls, 192 A.D.2d 228, 230-231, 601 N.Y.S.2d 740, affd. 84 N.Y.2d 60, 614 N.Y.S.2d 714, 638 N.E.2d 62).   Also unpreserved is defendant's claim of error with respect to the court's charge (see, McCummings v. New York City Tr. Auth., 177 A.D.2d 24, 31-32, 580 N.Y.S.2d 931, affd. 81 N.Y.2d 923, 597 N.Y.S.2d 653, 613 N.E.2d 559, cert. denied 510 U.S. 991, 114 S.Ct. 548, 126 L.Ed.2d 450), and there is no fundamental error warranting discretionary review of this issue.   The finding of a permanent injury within the meaning of Insurance Law § 5102(d) is not against the weight of the evidence (see, Scott v. Yurkewecz, 234 A.D.2d 673, 650 N.Y.S.2d 461), and conflicts in the expert testimony in this regard do not avail defendant (see, DiLauro v. Con. Edison, 200 A.D.2d 485, 606 N.Y.S.2d 645;  Niles v. Shue Roofing Co., 244 A.D.2d 820, 666 N.Y.S.2d 282).   We have considered defendant's remaining arguments and find them to be without merit.

MEMORANDUM DECISION.