Opinion
No. 4057.
September 16, 2008.
Judgment, Supreme Court, Bronx County (Lucy Billings, J.), entered on or about April 25, 2007, in plaintiff's favor, unanimously modified, on the facts, to the extent of directing a new trial on the issue of damages for past pain and suffering unless plaintiff stipulates to a reduction of the verdict from $500,000 to $300,000, and otherwise affirmed, without costs.
Wallace D. Gossett, Brooklyn (Anita Isola of counsel), for appellants.
Steven Wildstein, P.C., Great Neck (Michael K. Maiolica of counsel), for respondent.
Before: Gonzalez, J.P, Buckley, Moskowitz, Renwick and DeGrasse, JJ.
The trial court correctly refused to admit into evidence the history portion of plaintiffs emergency room record, which was offered to prove the truth of the facts asserted. This entry was not admissible as a business record because it was not germane to plaintiffs diagnosis or treatment ( Williams v Alexander, 309 NY 283; Gunn v City of New York, 104 AD2d 848, 849).
The jury's apportionment of liability in plaintiffs favor was based on a fair interpretation of the evidence ( see Nicastro v Park, 113 AD2d 129). However, the award for past pain and suffering materially deviated from reasonable compensation under the circumstances to the extent indicated (CPLR 5501 [c]).