WAHID v. LONG ISLAND RAIL ROAD COMPANY

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

Farrah WAHID, et al., appellants, v. LONG ISLAND RAIL ROAD COMPANY, et al., respondents, et al., defendants.

Decided: February 24, 2009

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, EDWARD D. CARNI, and WILLIAM E. McCARTHY, JJ. Jacoby & Meyers (Finkelstein & Partners, Newburgh, N.Y. [Ann R. Johnson], of counsel), for appellants. Goldberg Segalla, LLP, Mineola, N.Y. (Marianne Arcieri and Paul S. Devine of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of (1) an order of the Supreme Court, Queens County (Markey, J.), dated April 16, 2007, as denied their motion, inter alia, for a unified trial, and (2) a judgment of the same court entered June 28, 2007, which, upon a jury verdict, is in favor of the defendants Long Island Rail Road Company and Thomas Bakker and against them, dismissing the complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

 Although trial courts are encouraged to conduct a bifurcated trial in personal injury cases, a unified trial should be conducted where the nature of the injuries has an important bearing on the question of liability (see 22 NYCRR 202.42[a];  Wright v. New York City Hous. Auth., 273 A.D.2d 378, 709 N.Y.S.2d 600;  Lind v. City of New York, 270 A.D.2d 315, 316, 705 N.Y.S.2d 59).   Here, the plaintiffs failed to demonstrate how the infant plaintiff's injuries were probative on the issue of the existence or extent of the respondents' liability.   The expert report the plaintiffs submitted was wholly conclusory and therefore without probative value (see Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533, 569 N.Y.S.2d 337, 571 N.E.2d 645;  Lee v. City of New York, 40 A.D.3d 1048, 836 N.Y.S.2d 688;  Courtney v. Port Auth. of N.Y. & NJ, 34 A.D.3d 716, 718, 827 N.Y.S.2d 79;  Canales v. Hustler Mfg. Co., 12 A.D.3d 392, 786 N.Y.S.2d 539).   Accordingly, the trial court properly denied the plaintiffs' request for a unified trial (see Upton v. Redmond Prods., Inc., 23 A.D.3d 551, 806 N.Y.S.2d 653;  Pasquaretto v. Cohen, 37 A.D.3d 440, 829 N.Y.S.2d 214).

 The plaintiffs failed to show that they could produce the requisite medical proof to support the infant plaintiff's claim that she suffered from amnesia as a result of the accident, which was required before the issue could be considered by the jury (see Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 334, 502 N.Y.S.2d 696, 493 N.E.2d 920;  Dulin v. Maher, 200 A.D.2d 707, 607 N.Y.S.2d 67).   Thus, the trial court properly denied the plaintiffs' request for a Noseworthy charge (Noseworthy v. City of New York, 298 N.Y. 76, 80-81, 80 N.E.2d 744;  see Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d at 335, 502 N.Y.S.2d 696, 493 N.E.2d 920;  Dulin v. Maher, 200 A.D.2d 707, 607 N.Y.S.2d 67;  see generally Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99, 269 N.E.2d 812).

 The jury's finding was based on a fair interpretation of the evidence and, thus, was not against the weight of the evidence (see Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Nicastro v. Park, 113 A.D.2d 129, 134-135, 495 N.Y.S.2d 184).   The conflicting versions of the accident testified to by an eyewitness and the defendant Thomas Bakker raised a question of credibility for the jury to resolve, and as the jury had the opportunity to hear and observe the witnesses, this Court should accord great deference to the jury's determination to credit Bakker's testimony (see Ahr v. Karolewski, 48 A.D.3d 719, 853 N.Y.S.2d 172).

The plaintiffs' remaining contentions are without merit.

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