NUZZO v. CASTELLANO (1998)

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (G. Aronin, J.), entered August 6, 1997, which, upon a jury verdict finding them to be 75% at fault in the happening of the occurrence, is in favor of the plaintiff and against them in the principal sum of $313,521.

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages only.

The Supreme Court committed reversible error by allowing a plaintiff's expert, who had not physically examined the plaintiff, to testify as to a diagnosis of the plaintiff's back injury based, for the most part, on magnetic resonance imaging (hereinafter MRI) films which were not in evidence (see, Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 480 N.Y.S.2d 195, 469 N.E.2d 516).   Contrary to the plaintiff's contention, the MRI was not used merely to confirm the expert's opinion formed out of information from other sources but instead was used as a basis for her opinion (cf., Pegg v. Shahin, 237 A.D.2d 271, 654 N.Y.S.2d 395;  Karayianakis v. L & E Grommery, 141 A.D.2d 610, 529 N.Y.S.2d 358).   Accordingly, a new trial on the issue of damages is warranted (see, Whalen v. Avis Rent A Car Sys., 138 Misc.2d 959, 529 N.Y.S.2d 52).

MEMORANDUM BY THE COURT.