BERSON v. Hector L. Colon, et al., Third-Party Defendants-Appellants. (1998)

In an action to recover damages for personal injuries, the defendant Fazle A. Chowdhury appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (G.Aronin, J.), entered July 29, 1997, as, upon a jury verdict finding him 40% at fault in the happening of an accident, and finding that the plaintiff sustained damages in the sums of $500,000 for past pain and suffering, $110,000 for past loss of earnings, $1,300,000 for future pain and suffering, and $182,000 for future loss of earnings, is in favor of the plaintiff and against him in the principal sum of $2,092,000, and the third-party defendants Hector L. Colon and Metropolitan Ambulance separately appeal from the same judgment, which, upon a jury verdict finding, inter alia, that the third-party defendant Colon was 60% at fault in the happening of the accident, is in favor of the defendant Chowdhury and against them in the principal sum of $1,255,200.

ORDERED that the judgment is reversed, on the law, and a new trial is granted on the issue of damages only, with costs to abide the event.

Because the plaintiff failed to turn over the report of his treating physician pursuant to 22 NYCRR 202.17(g), and failed to make the requisite showing of good cause for the admission of this physician's testimony, a new trial is warranted on the issue of damages under the circumstances of this case (see, 22 NYCRR 202.17[g], [h];  Baden v. D.L. Peterson Trust, 190 A.D.2d 705, 706, 593 N.Y.S.2d 311).

The remaining contentions of the appellants Hector L. Colon and Metropolitan Ambulance are without merit.

MEMORANDUM BY THE COURT.