GREGORY v. MULLIGAN (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Putnam County (Hickman, J.), entered September 22, 1998, which, upon a jury verdict in favor of the defendant and against him and upon the denial of his motion for a new trial, dismissed the complaint.

ORDERED that the judgment is reversed, on the law, the motion is granted, and the matter is remitted to the Supreme Court, Putnam County, for a new trial, with costs to abide the event.

The Supreme Court erred in permitting the defendant's examining physician to testify that based on his review of a bone scan immediately prior to trial, the plaintiff had not suffered a fracture.   The defendant had earlier served that physician's medical report in compliance with 22 NYCRR 202.17(h) and CPLR 3101(d), and the report stated “[f]rom the records it is apparent that [plaintiff] had a fracture”.   Thus, his contradictory testimony at trial surprised and prejudiced the plaintiff, as the existence of a fracture had not previously been disputed (see, Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 577 N.Y.S.2d 512;  Knight v. Long Is. Coll. Hosp., 106 A.D.2d 371, 482 N.Y.S.2d 503).   Since the defendant failed to make the requisite showing of good cause for the admission of this contradictory testimony, a new trial is warranted under the circumstances (see, 22 NYCRR 202.17[h];  CPLR 3101 [d];  Baden v. Peterson Trust, 190 A.D.2d 705, 706, 593 N.Y.S.2d 311).

MEMORANDUM BY THE COURT.