FARRELL v. GELWAN

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

Patricia FARRELL, appellant, v. Mark J. GELWAN, etc., respondent.

Decided: June 20, 2006

HOWARD MILLER, J.P., ROBERT W. SCHMIDT, WILLIAM F. MASTRO, and ROBERT J. LUNN, JJ. Viders & Wiesen, Carle Place, N.Y. (Mitchel Lidowsky of counsel), for appellant. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Taylor, J.), entered February 8, 2005, which, upon a jury verdict, is in favor of the defendant and against her dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

 The Supreme Court providently exercised its discretion in admitting the testimony of the defendant's expert that the plaintiff's loss of vision was caused by macular degeneration rather than by the defendant's surgeries and treatment (see McGlauflin v. Wadhwa, 265 A.D.2d 534, 696 N.Y.S.2d 880;  Putchlawski v. Diaz, 192 A.D.2d 444, 445, 597 N.Y.S.2d 10).   The expert's testimony did not transcend the scope of information set forth in the applicable expert disclosure form or the previously exchanged medical reports, received well before trial (see CPLR 3101[d][1][i];  22 NYCRR 202.17 [h];  Cutsogeorge v. Hertz Corp., 264 A.D.2d 752, 695 N.Y.S.2d 375;  Serpe v. Eyris Prods., 243 A.D.2d 375, 380, 663 N.Y.S.2d 542;  Freeman v. Kirkland, 184 A.D.2d 331, 584 N.Y.S.2d 828;  cf. Gregory v. Mulligan, 266 A.D.2d 344, 698 N.Y.S.2d 309).

 Both the grant of a continuance and the presentation of rebuttal proof rest within the sound discretion of the trial court, and the court's decision in that regard should not be disturbed on appeal unless the court improvidently exercised its discretion (see Capone v. Gannon, 150 A.D.2d 749, 750, 542 N.Y.S.2d 199;  Balogh v. H.R.B. Caterers, 88 A.D.2d 136, 143, 452 N.Y.S.2d 220;  Wilson v. Wilson, 97 A.D.2d 897, 470 N.Y.S.2d 464).   Under the circumstances of this case, the court providently exercised its discretion in denying the plaintiff's application for a continuance to secure expert rebuttal proof related to the issue of macular degeneration and causation (see Paulino v. Marchelletta, 216 A.D.2d 446, 446-447, 628 N.Y.S.2d 541;   Menderis v. Menderis, 148 A.D.2d 427, 538 N.Y.S.2d 581;  Chumsky v. Chumsky, 108 A.D.2d 714, 484 N.Y.S.2d 879).   Because the plaintiff was placed on sufficient notice as to the defense theory of causation, the plaintiff could have adduced evidence to negate the defense theory on her direct case and it was improper to seek additional time to rebut that theory (see Republic of Croatia v. Trustee of the Marquess of Northampton 1987 Settlement, 203 A.D.2d 167, 610 N.Y.S.2d 263;  Harvin v. New York City Tr. Auth., 198 A.D.2d 401, 603 N.Y.S.2d 893;  Kupfer v. Dalton, 169 A.D.2d 819, 820, 565 N.Y.S.2d 188;  Kapinos v. Alvarado, 143 A.D.2d 332, 333, 532 N.Y.S.2d 416).   In any event, the jury exonerated the defendant of any malpractice and never reached the issue of causation (see Avezzano v. Savoretti, 14 A.D.3d 635, 788 N.Y.S.2d 621;  Gilbert v. Luvin, 286 A.D.2d 600, 730 N.Y.S.2d 85;  Ciotti v. New York Hosp., 221 A.D.2d 581, 634 N.Y.S.2d 204;  Olsen v. City of New York, 141 A.D.2d 709, 529 N.Y.S.2d 1004).

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