Kercu v Zipprich

[*1] Kercu v Zipprich 2015 NY Slip Op 51298(U) Decided on September 2, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 2, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2013-801 Q C

Nick Kercu, Appellant,

against

Rosaline M. Zipprich, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered September 4, 2012. The judgment, entered upon a jury verdict on the issue of damages finding that plaintiff did not sustain a serious injury under the significant limitation of use and consequential limitation of use categories of Insurance Law § 5102 (d), and upon the denial of plaintiff's motion pursuant to CPLR 4404 (a) to set aside the verdict on the issue of damages and for a new trial on that issue, dismissed the complaint.

ORDERED that the judgment is reversed, without costs, the order denying plaintiff's motion to set aside the jury verdict on the issue of damages is vacated, plaintiff's motion is granted and the matter is remitted to the Civil Court for a new trial on the issue of damages.

Prior to the commencement of the trial in this action to recover for, among other things, personal injuries allegedly sustained in a 2006 motor vehicle accident, defendant conceded liability and the parties stipulated that plaintiff's property damage claim was discontinued with prejudice. At a jury trial on the issue of damages, the Civil Court allowed defendant's expert, Dr. Pitman, to testify about a bill of particulars from an unrelated medical malpractice action, which had been brought in 1990 by plaintiff. The 1990 bill of particulars was not admitted into evidence in the present trial. While Dr. Pitman testified that he "believed" that the bill of particulars contained an assertion that plaintiff suffered from a nerve disease called reflex sympathetic dystrophy (RSD), there was no medical testimony on personal knowledge about plaintiff's alleged RSD condition. Defendant's doctor testified that, in his opinion, based upon his examination of plaintiff, plaintiff was not orthopedically disabled by the accident at issue, and that any future surgery for plaintiff would be required because of RSD and not because of the accident. In his summation, defendant's attorney argued that plaintiff's 1990 bill of particulars had asserted a claim of RSD. Defense counsel also summarized Dr. Pitman's testimony about RSD, contending in his summation that Dr. Pitman opined that had plaintiff's surgeon known that plaintiff had RSD, he would not have operated on plaintiff in 2009, since surgery would not have relieved plaintiff's pain. Subsequently, during the jury's deliberations, the jury asked to review, among other things, Dr. Pitman's testimony about RSD. Plaintiff appeals from a judgment which, upon the jury's verdict in favor of defendant, finding that plaintiff did not sustain a serious injury under the significant limitation of use and consequential limitation of use categories of Insurance Law § 5102 (d), and upon the denial of an oral motion by plaintiff to set aside the verdict, dismissed the complaint.

It was error for the Civil Court to permit testimony by Dr. Pitman about a 1990 bill of particulars from plaintiff's unrelated case and to permit the doctor's reference during his opinion testimony to an allegation of RSD contained in that bill of particulars, since the 1990 bill of particulars was not admitted into evidence in the present case and the doctor did not have personal knowledge of plaintiff's alleged RSD condition (see Jemmott v Lazofsky, 5 AD3d 558 [2004]; DeLuca v Ding Ju Liu, 297 AD2d 307 [2002]; see e.g. Wagman v Bradshaw, 292 AD2d 84 [2002]). Furthermore, as the doctor's testimony related to the ultimate issue to be determined by the jury, which is whether plaintiff had sustained a serious injury, as defined by Insurance Law § 5102 (d), as a result of the accident in question, the error cannot be deemed harmless (see Watch v Gertsen, 126 AD3d 687 [2015]; Sanchez v Steenson, 101 AD3d 982 [2012]; Cuevas v Alexander's, Inc., 23 AD3d 428 [2005]), especially here, where defendant's attorney referred to RSD in his summation and the jury, during deliberations, asked to review Dr. Pitman's testimony concerning RSD. Under the circumstances, plaintiff's motion to set aside the jury verdict should have been granted (see Watch, 126 AD3d 687; Sanchez, 101 AD3d 982; Cuevas, 23 AD3d 428).

Accordingly, the judgment is reversed, the order denying plaintiff's motion to set aside the jury verdict on the issue of damages is vacated, plaintiff's motion is granted and the matter is remitted to the Civil Court for a new trial on the issue of damages.

Pesce, P.J., and Elliot, J., concur.

Weston, J., dissents in a separate memorandum.

Weston, J., dissents and votes to affirm the judgment in the following memorandum:

The jury's finding that plaintiff did not sustain a serious injury under the significant limitation of use and consequential limitation of use categories of Insurance Law § 5102 (d) was supported by a valid line of reasoning or permissible inferences based on the evidence presented at trial (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Cohen v Hallmark Cards, 45 NY2d 493 [1978]). Moreover, the verdict was not

against the weight of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). In my opinion, the trial judge fulfilled her function as gatekeeper by limiting the scope of Dr. Pitman's expert testimony to plaintiff's previous permanent injuries. Assuming, as the majority does, that the trial judge erred in permitting reference to these injuries, I conclude that any error was harmless, particularly in view of Dr. Pitman's testimony that, based upon his own examination of plaintiff and his review of plaintiff's medical records, he concluded that the accident in question [FN1] had not caused plaintiff's injuries. The doctor opined that there had been a progressive deterioration of plaintiff's spine and that the herniations and disc bulges were present before the accident at issue. Additionally, defendant's radiologist testified that an MRI film which he had reviewed showed multiple levels of degenerative disc disease on plaintiff's lumbar spine.

"Where the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" (Torres v Esaian, 5 AD3d 670, 671 [2004]). In view of the foregoing, the jury could have reasonably concluded that although plaintiff had sustained disc herniations and bulges to his lumbar spine and a bulging disc to his cervical spine, the injuries were not the result of the accident in question.

Accordingly, I vote to affirm the judgment.

Decision Date: September 02, 2015

Footnotes

Footnote 1:It is undisputed that defendant's car collided with the rear of plaintiff's vehicle while plaintiff's vehicle was stopped in a bank drive-through lane.