Finocchiaro v Wall St. Mail PK-UP Servs., Inc.

[*1] Finocchiaro v Wall St. Mail PK-UP Servs., Inc. 2005 NYSlipOp 51163(U) Decided on July 21, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 21, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
2004-265 RI C

Santo Finocchiaro and Concettina Finocchiaro, Respondents,

against

Wall Street Mail PK-UP Services, Inc. and Karl Wilson, Appellants.

Appeal by defendants from an order of the Civil Court, Richmond County (P. Straniere, J.), entered December 20, 2002, which denied their motion to set aside the jury verdict and dismiss the complaint or, in the alternative, for a new trial as to damages.

Order unanimously modified by granting the branch of defendants' motion which sought to set aside the jury verdict and order a new trial as to damages in accordance with the decision set forth herein; as so modified, affirmed without costs.

Plaintiff, Santo Finnocchiaro, commenced the instant action to recover damages for personal injuries he sustained in an automobile accident and his wife asserted a derivative claim. After a directed verdict was entered with respect to liability, a trial was held with respect to the damages sustained by plaintiff and his wife. Subsequent to the jury verdict, defendants moved for an order dismissing the action notwithstanding the verdict or, in the alternative, setting aside the verdict as to damages and ordering a new trial on damages due to certain evidentiary rulings by the trial court. The court denied the motion in its entirety and this appeal ensued.

At trial, neither plaintiff's treating chiropractor nor plaintiff's medical expert witnesses performed the EMG test and they did not review the actual results of the EMG test. Rather, they merely relied upon the transposition of the test results by the person who administered the EMG test and reiterated his conclusions. In addition, plaintiff did not submit the actual EMG test results into evidence. As a result, plaintiff failed to proffer sufficient evidence to establish the reliability of the out-of-court EMG report and plaintiff should not have been allowed to elicit [*2]testimony regarding the content of the EMG report (see DeLuca v Ding Ju Liu, 297 AD2d 307 [2002]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, a new trial is warranted on the issue of damages (see DeLuca v Ding Ju Liu, 297 AD2d 307, supra).

In addition, contrary to the court's determination, the plaintiffs' "self labeled supplemental bill of particulars was in reality an amended bill of particulars since it sought to add new injuries" (Kyong Hi Wohn v County of Suffolk, 237 AD2d 412, 412 [1997] [internal quotation marks and citations omitted]; see also Fuentes v City of New York, 3 AD3d 549 [2004]; cf. Ray v Alpha Omega Dev. Co., 287 AD2d 446 [2001]). Inasmuch as plaintiffs' amended bill of particulars was served without leave of court and plaintiffs failed to demonstrate a reasonable excuse for the lengthy delay in seeking leave to serve an amended bill of particulars, defendants' motion to strike the purported supplemental bill of particulars should have been granted (see Dahlin v Paladino, 14 AD3d 647 [2005]; Fuentes v City of New York, 3 AD3d 549, supra; Dalrymple v Koka, 295 AD2d 469 [2002]; Golub v Sutton, 281 AD2d 589 [2001]). Consequently, all evidence concerning the alleged injury to plaintiff's right shoulder should have been precluded and, upon the new trial, should not be admitted. [*3]

Defendants' remaining contentions either lack merit, are unpreserved for appellate review (see CPLR 5501 [a] [3]) or are academic.
Decision Date: July 21, 2005