SIGUE v. [And Third-Party Actions]

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

Mary SIGUE, Plaintiff-Respondent, v. CHEMICAL BANK, Defendant-Appellant, Olympia-York 245 Park Land Company, et al., Defendants. [And Third-Party Actions]

Decided: June 26, 2001

SULLIVAN, P.J., ELLERIN, WALLACH, RUBIN, and BUCKLEY, JJ. Julie T. Mark, for Plaintiff-Respondent. Lisa M. Comeau, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J. and a jury), entered June 23, 2000, apportioning liability 100% against defendant-appellant premises occupant, and awarding plaintiff, an employee of third-party defendant cleaning contractor, damages in the principal amounts of $250,000 for past pain and suffering and $20,160 for past lost earnings, unanimously modified, on the law and the facts, to direct a new trial on the issue of damages, and otherwise affirmed, without costs.

 The verdict on liability was based on legally sufficient evidence of appellant's constructive notice of a dangerous condition on its premises.   Plaintiff testified that the tape fastening the plastic mat to the ramp on which she fell was worn, had holes in it, was always turning over and was otherwise in a “deplorable condition” for a month prior to the accident (see, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489;  Bernstein v. Red Apple Supermarkets, 227 A.D.2d 264, 642 N.Y.S.2d 303, lv. dismissed 89 N.Y.2d 961, 655 N.Y.S.2d 881, 678 N.E.2d 493).   Plaintiff's credibility was properly placed before the jury, whose finding of fact as to the existence of a danger is supported by a fair interpretation of the evidence and should not be disturbed (see, Bernstein v. Red Apple Supermarkets, id.).   Nor is there any basis for disturbing the jury's apportionment of liability (see, Berry v. Metropolitan Transp. Auth., 256 A.D.2d 271, 272, 683 N.Y.S.2d 30).   In that regard, it was not plaintiff's burden to prove that she was not negligent in moving her cleaning cart down the ramp, but rather appellant's burden to show that there was an alternative, safer route that plaintiff chose not to take (see, Perales v. City of New York,, 274 A.D.2d 349, 711 N.Y.S.2d 9).

 However, with respect to damages, there is reversible error in two respects.   First, the trial court should not have allowed the testimony of plaintiff's neurologist that she suffered from an internal derangement of the left knee and detachment of the medial meniscus.   Such testimony was based on an arthrogram report prepared by a non-testifying doctor that was not addressed to the neurologist, and should not have been admitted into evidence since it constituted an expression of opinion on the crucial issues of the existence and severity of plaintiff's injuries and formed the principal basis for the neurologist's opinion on those issues, “not merely a link in the chain of data upon which that witness relied” (Borden v. Brady, 92 A.D.2d 983, 984, 461 N.Y.S.2d 497;  see also, Brown v. County of Albany, 271 A.D.2d 819, 820-821, 706 N.Y.S.2d 261, lv. denied 95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653;  Schwartz v. Gerson, 246 A.D.2d 589, 668 N.Y.S.2d 223).   The trial court also erred in refusing to give a missing witness charge with respect to the two treating physicians who, it appears, provided most of the treatment for the injuries in issue herein (see, Dukes v. Rotem, 191 A.D.2d 35, 39-40, 599 N.Y.S.2d 915, appeal dismissed 82 N.Y.2d 886, 609 N.Y.S.2d 563, 631 N.E.2d 569;  Reynolds v. Green Bus Lines, 184 Misc.2d 290, 708 N.Y.S.2d 232).