PRICE v. CITY OF NEW YORK

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

Richard Lee PRICE, et al., respondents, v. CITY OF NEW YORK, appellant.

Decided: February 22, 1999

DAVID S. RITTER, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN and LEO F. McGINITY, JJ. Michael D. Hess, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, John R. Low-Beer, and Jane S. Earle of counsel), for appellant. Smiley, Schwartz & Captain, New York, N.Y. (Guy I. Smiley and Howard Engle of counsel), and The Breakstone Law Firm, P.C., Bellmore, N.Y. (Jay L.T. Breakstone of counsel), for respondents (one brief filed).

In an action to recover damages for personal injuries, etc., the defendant appeals from a judgment of the Supreme Court, Kings County (I. Aronin, J.), dated October 10, 1997, which, upon a jury verdict, is in favor of the plaintiffs and against it in the principal sum of $1,700,000 ($500,000 for the past pain and suffering of the plaintiff Richard Lee Price, $1,100,000 for his future pain and suffering, and $100,000 to the plaintiff Laura Shapiro-Price for loss of services).

ORDERED that the judgment is reversed, on the law, with costs, and a new trial is ordered before a different Justice on the issue of damages only.

The plaintiffs brought this action to recover damages arising from alleged neck and back injuries suffered by the plaintiff Richard Lee Price when his vehicle encountered a roadway defect.   The defendant conceded liability and a trial was held on the issue of damages.   The jury awarded Price the sum of $1,600,000 for past and future pain and suffering, and awarded his wife, the plaintiff Laura Shapiro-Price, $100,000 on her derivative claim for loss of services.   There must be a reversal and a new trial on the issue of damages because of certain erroneous evidentiary rulings made by the trial court.

 At trial, the injured plaintiff acknowledged that a surgical procedure was available which might cure or ameliorate some of his pain and suffering and which therefore could have mitigated his damages.   However, he claimed for the first time at trial that, in view of his pre-existing heart condition and affliction with diabetes, the procedure posed too great a risk.   The defendant then sought to introduce medical records pertaining to an unrelated elective surgical procedure which the injured plaintiff underwent a few years after his accident.   The trial court denied the request and advised the defendant to produce a medical expert who could testify regarding the similarities between the two surgical procedures.   However, when the defendant attempted to elicit such testimony from one of its physician witnesses, the court precluded that line of inquiry on the ground that it had not been set forth as a topic of the witness's testimony pursuant to CPLR 3101(d)(1)(i).   This was error.   Inasmuch as the injured plaintiff's evidence regarding the risks posed by the proposed mitigating surgery came as a surprise at trial, the defendant established good cause for any failure to comply with the requirements of CPLR 3101, and the proffered testimony should have been permitted (see, Benedict v. Seasille Equities Corp., 190 A.D.2d 649, 593 N.Y.S.2d 67).   To the extent that the proposed evidence may concern irrelevant and personally delicate matters, appropriate safeguards in the form of careful questioning and redaction of documentary exhibits may be employed.

 Additionally, the trial court erred in denying the defendant's request for a missing witness charge with respect to Dr. Paul Brisson, one of the injured plaintiff's treating physicians.   The defendant succeeded in demonstrating the requisite elements for entitlement to the charge, and the plaintiffs failed to establish that the witness was unavailable or not under their control, or that his testimony would be cumulative (see generally, Leahy v. Allen, 221 A.D.2d 88, 644 N.Y.S.2d 388;  Moore v. Johnson, 147 A.D.2d 621, 538 N.Y.S.2d 28).

Since these rulings deprived the defendant of a fair trial, a new trial on damages is required.

In view of the foregoing, we do not reach the defendant's remaining contentions.

MEMORANDUM BY THE COURT.

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