Corry v Mathe

[*1] Corry v Mathe 2016 NY Slip Op 51757(U) Decided on December 2, 2016 Supreme Court, Dutchess County Rosa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 2, 2016
Supreme Court, Dutchess County

Lise Corry, Plaintiff,

against

Joseph S. Mathe, Defendant.



1739/15



Rutberg Breslow Personal Injury law

Lawrence A. Breslow, Esq.

3344 Route 9 North

Poughkeepsie NY 12601

McCabe & Mack, LLP

Matthew V. Mirabile, Esq.

63 Washington Street

PO Box 509

Poughkeepsie NY 12602-0509
Maria G. Rosa, J.

The following papers were read and considered on plaintiff's motion for a unified trial and defendant's cross-motion.

NOTICE OF MOTION AFFIRMATION IN SUPPORT EXHIBITS A-L

NOTICE OF CROSS-MOTION AFFIRMATION IN SUPPORT EXHIBITS 1-4

REPLY AFFIRMATION EXHIBITS A-E

REPLY AFFIRMATION

AFFIRMATION IN OPPOSITION

OFFER OF PROOF/AFFIRMATION IN SUPPORT EXHIBITS A-H

This is a negligence action in which plaintiff seeks damages for injuries allegedly sustained when she was hit by a car crossing a street. Plaintiff moves for a unified trial pursuant to CPLR §4011. Defendant cross-moves for an order precluding or limiting the testimony of Nidhee Dubal, DPM.

On September 5, 2014 plaintiff was a pedestrian crossing Church Street at its intersection with Market Street in Poughkeepsie, New York. Plaintiff alleges that after she crossed the first two lanes of traffic and was beginning to cross the third lane of traffic the defendant's tire ran over her foot. The defendant and a passenger in his vehicle dispute plaintiff's account of the [*2]accident and claim that defendant was fully stopped and plaintiff ran into the car as she was crossing the street. Defendant disputes that the tire of his car ever ran over plaintiff's foot. Plaintiff now moves for a unified trial on the issue of liability and damages claiming that she intends to introduce medical testimony and evidence at the liability phase of the trial to prove that defendant's tire did run over her foot.

In support of the motion plaintiff has produced an affidavit of her treating podiatrist Nidhee Dubal stating that she treated the plaintiff for foot injuries since 2014 and that it is her opinion, based on clinical exams and a review of diagnostic studies, that plaintiff's foot injuries were the direct result of its being run over by a tire and not the result of a blunt force trauma. Plaintiff has also produced medical records supporting her claim that she suffered a crush injury to her left foot. In opposition, defendant asserts that plaintiff has failed to demonstrate it is necessary to introduce medical evidence of her injuries to establish the defendant's alleged negligence. Defendant asserts that a jury is capable of determining the issue of negligence based upon the conflicting testimony of the parties.

After the instant motion was fully submitted, the court invited the parties to submit supplemental affidavits or affirmations to aid the court in determining the extent, if any, to which testimony regarding plaintiff's injuries during the liability portion of the trial would be prejudicial to the defendant. In response, plaintiff submitted an affirmation outlining the proof she intended to introduce at trial. Defendant submitted an affirmation reiterating his arguments that medical evidence was irrelevant to the issue of liability.

The New York Rules of Court encourage trial courts to conduct bifurcated trials in personal injury cases where it appears that bifurcation will assist in clarifying or simplifying the issues. See 22 NYCRR §202.42. However, where the nature of plaintiff's injuries will assist the fact-finder in making a determination as to liability, the trial court has the discretion to order a unified trial. CPLR §4011; Patino v. County of Nassau, 124 AD3d 738 (2nd Dept. 2016). The party opposing bifurcation has the burden of showing that evidence of injuries are relevant to the issue of liability. See Barrera v. Skaggs-Walsh, Inc., 279 AD2d 442 (2nd Dept. 2001).

In this action, plaintiff claims that the defendant's vehicle ran over her foot while the defendant claims that the plaintiff walked or ran into the side of his vehicle. Under such circumstances, whether or not plaintiff's injury to her foot was the result of being crushed or a blunt force trauma is directly relevant to a jury's determination of which party's version of events they deem credible. Accordingly, medical evidence concerning the nature of plaintiff's foot injury is relevant to the issue of liability. The court is cognizant that in some cases evidence of injury could engender sympathy to a plaintiff and prejudice the defendant. Here, however, defendant fails to offer any facts in support of his conclusory claims of prejudice, even though the court gave the defendant the opportunity to supplement his opposition. The mere fact that plaintiff sustained an injury is not unduly prejudicial and defendant fails to articulate any additional facts demonstrating that he would be unduly prejudiced by a unified trial. Wherefore, it is hereby

ORDERED that plaintiff's motion for a unified trial on the issues of liability and damages is granted. See Roman v. McNulty, 99 AD2d 544 (2nd Dept. 1984). It is further

ORDERED that defendant's cross-motion to preclude the opinion testimony of plaintiff's treating podiatrist Nidhee Dubal is denied. A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR §3101(d). Jing Xue Jiang v. [*3]Dollar Rent A Car, Inc., 91 AD3d 603 (2nd Dept. 2012). To the extent that defendant claims that Dr. Dubal is not qualified to offer an expert opinion as to the cause of plaintiff's foot injury, defendant may voir dire Dr. Dubal prior to her offering any opinion testimony.

Counsel are reminded that a pre-trial conference is scheduled for January 25, 2017 at 9:45 a.m.

This constitutes the decision and order of this court.

Dated: December 2, 2016

ENTER: Poughkeepsie, New York

MARIA G. ROSA, J.S.C.

Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.