SULLIVAN v. DRA IMAGING

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Supreme Court, Appellate Division, First Department, New York.

Sharlene SULLIVAN, Plaintiff-Appellant, v. DRA IMAGING, P.C., et al., Defendants-Respondents.

Decided: November 28, 2006

MAZZARELLI, J.P., FRIEDMAN, NARDELLI, GONZALEZ, CATTERSON, JJ. Sharlene Sullivan, appellant pro se. O'Connor, Redd & Sklarin, LLC, White Plains (Steven M. O'Connor of counsel), for DRA Imaging, P.C., respondent. Hastings, Cohan, Walsh & Lovallo, LLP, Ridgefield, CT (Jennifer J. Tunnard of counsel), for Peter A. Lombardozzi, respondent.

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered April 6, 2005, which denied plaintiff's motion to set aside the jury verdict in favor of defendants as against the weight of the evidence, unanimously affirmed, without costs.

 The jury's findings that plaintiff's injuries are not causally related to the accident required resolution of conflicting expert testimony and attendant credibility determinations, and is supported by a fair interpretation of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 [1985];  Watts v. State of New York, 25 A.D.3d 324, 809 N.Y.S.2d 5 [2006];  Torricelli v. Pisacano, 9 A.D.3d 291, 780 N.Y.S.2d 137 [2004], lv. denied 3 N.Y.3d 612, 788 N.Y.S.2d 668, 821 N.E.2d 973 [2004] ).   While defendants' neurologist's reference to certain findings in an unproduced 1991 paper by the American Academy of Neurology was impermissible hearsay that should have been disallowed, the error was rendered harmless by the neurologist's testimony, on cross-examination, that the paper was “out-of-date” and under reconsideration by the Academy.   We note that the neurologist's opinion with respect to plaintiff's brain injury was based predominantly on his own examination and testing of plaintiff, and that his reference to the 1991 paper was to explain why he, unlike plaintiff's neurological expert, did not use a PET scan study to evaluate plaintiff's claimed brain trauma.   We have considered plaintiff's remaining contentions and find them without merit.