ANDOH v. [And A Third-Party Action]

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

Osbert ANDOH, Plaintiff-Respondent, v. Vincent MILANO, et al., Defendants-Appellants. [And A Third-Party Action]

Decided: April 25, 2000

ROSENBERGER, J.P., NARDELLI, TOM, WALLACH and SAXE, JJ. Howard I. Trepp, for Plaintiff-Respondent. Morton H. Feder, Lori Anne Fee, for Defendants-Appellants.

Judgment, Supreme Court, Bronx County (George Friedman, J.), entered April 7, 1999, which, after a jury trial, awarded plaintiff the total sum of $343,741.81, unanimously affirmed, without costs.

 In light of defense counsel's admission that he chose not to have the transcript of a nonparty witness deposition in court when the deposed witness began his trial testimony, it was a proper exercise of the trial court's inherent power to control the timing and order in which evidence was introduced (see, Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293) to have declined to keep the witness, who at the time of the trial was incarcerated, in court at plaintiff's expense while defense counsel waited for the transcript, and to have declined to permit defense counsel to use the transcript to place a prior inconsistent statement before the jury without first confronting the witness with it (see, People v. Concepcion, 175 A.D.2d 324, 327, 572 N.Y.S.2d 940, lv. denied 78 N.Y.2d 1010, 575 N.Y.S.2d 818, 581 N.E.2d 1064).   In addition, even if we were to find that the court erred in permitting plaintiff to make use of a different witness's deposition transcript because counsel, who had not requested the witness's deposition, had not taken it upon himself to give the witness the opportunity to sign the transcript (see, CPLR 3116[a] ), we would find the error harmless, since we perceive no likelihood that a ruling to the contrary would have resulted in a different verdict.

 In light of a concession by the defense medical expert that plaintiff suffered permanent injury causing him pain, and given defendant's failure to controvert plaintiff's proof that he suffered a consequential limitation of activity, especially recreational activity, the court did not err in ruling, as a matter of law, that plaintiff suffered a serious injury within the meaning of section 5102(d) of the Insurance Law (see, Paternoster v. Drehmer, 260 A.D.2d 867, 868-868, 688 N.Y.S.2d 778).