LEFFLER v. FELD (2010)

Judgment, Supreme Court, Bronx County (Patricia Ann Williams, J.), entered February 23, 2009, after a jury trial in a medical malpractice action, dismissing the complaint, unanimously affirmed, without costs.

 No basis exists to disturb the verdict (see McDermott v. Coffee Beanery, Ltd., 9 A.D.3d 195, 206–207, 777 N.Y.S.2d 103 [2004] ), “especially [as] resolution of the case turns on an evaluation of conflicting expert testimony” (Fontana v. Kurian, 214 A.D.2d 832, 833, 625 N.Y.S.2d 677 [1995], lv. denied 86 N.Y.2d 707, 634 N.Y.S.2d 441, 658 N.E.2d 219 [1995] ), and on issues of credibility.   This includes what plaintiff told defendant about her symptoms.   However, the jury specifically rejected the plaintiff's claim that Altace caused plaintiff's condition.

 The court properly refused to permit plaintiff to call a previously undisclosed coworker as a rebuttal witness, as the witness could have been called on plaintiff's direct case (cf. Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293 [1980];  see Hutchinson v. Shaheen, 55 A.D.2d 833, 834, 390 N.Y.S.2d 317 [1976] ).   Moreover, since the rebuttal witness would not have testified to what plaintiff told defendant about her symptoms, no substantial right was prejudiced by the preclusion of the witness's testimony (see Frias v. Fanning, 119 A.D.2d 796, 797, 501 N.Y.S.2d 423 [1986] ).

 Finally, the testimony of plaintiff's handwriting expert was properly precluded because it “was of questionable probative value and likely to involve distracting collateral issues” (Heraud v. Weissman, 276 A.D.2d 376, 377, 714 N.Y.S.2d 476 [2000], lv. denied, 96 N.Y.2d 705, 723 N.Y.S.2d 131, 746 N.E.2d 186 [2001] ).   The pre-deliberations substitution of an alternate juror for a juror who was late and could not be contacted was also a proper exercise of discretion (see People v. Jeanty, 94 N.Y.2d 507, 517, 706 N.Y.S.2d 683, 727 N.E.2d 1237 [2000];  People v. Ballard, 51 A.D.3d 1034, 1035–1036, 858 N.Y.S.2d 769 [2008], lv. denied 11 N.Y.3d 734, 864 N.Y.S.2d 392, 894 N.E.2d 656 [2008] ).