Opinion
126 CA 18–01136
04-26-2019
Michael P. CICCO, Plaintiff–Appellant, v. Fred S. DUROLEK and Elaine A. Durolek, Defendants–Respondents.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is affirmed without costs.
Memorandum: In this action to recover damages for injuries he allegedly sustained in an automobile accident, plaintiff appeals from an order and judgment that, inter alia, dismissed the complaint upon a jury verdict in defendants' favor. We affirm.
We reject plaintiff's contention that Supreme Court erred in admitting photographs from plaintiff's social media accounts that allegedly depicted his post-accident condition. The photographs were timely disclosed (see generally Krute v. Mosca, 234 A.D.2d 622, 624, 650 N.Y.S.2d 862 [3d Dept. 1996] ) and properly authenticated (see generally Corsi v. Town of Bedford, 58 A.D.3d 225, 228, 868 N.Y.S.2d 258 [2d Dept. 2008], lv denied 12 N.Y.3d 714, 2009 WL 1770158 [2009] ). The alleged discrepancies between the date of the photos and the date of the accident went to the weight of the evidence, not its admissibility (see People v. Costello, 128 A.D.3d 848, 848, 9 N.Y.S.3d 132 [2d Dept. 2015], lv denied 26 N.Y.3d 927, 1007, 17 N.Y.S.3d 90, 38 N.E.3d 836 [2015], reconsideration denied 26 N.Y.3d 1007, 20 N.Y.S.3d 548, 42 N.E.3d 218 [2015] ). In any event, any error in admitting the photographs was harmless (see CPLR 2002 ; Matter of Edick v. Gagnon, 139 A.D.3d 1126, 1128, 33 N.Y.S.3d 474 [3d Dept. 2016] ).
Furthermore, under the circumstances of this case, the court properly precluded plaintiff from introducing various medical records and testimony pertaining to the opinions of certain nontestifying doctors (see Meneses v. Riggs, 138 A.D.3d 700, 701, 29 N.Y.S.3d 434 [2d Dept. 2016] ; see generally Tornatore v. Cohen, 162 A.D.3d 1503, 1505, 78 N.Y.S.3d 542 [4th Dept. 2018] ). Contrary to plaintiff's contention, the medical records at issue were not automatically admissible pursuant to CPLR 3122–a(c) simply because defendants did not challenge their admissibility within 10 days of trial (see Siemucha v. Garrison, 111 A.D.3d 1398, 1400, 975 N.Y.S.2d 518 [4th Dept. 2013] ). In any event, any error in precluding the foregoing evidence was harmless (see CPLR 2002 ; Geary v. Church of St. Thomas Aquinas, 98 A.D.3d 646, 647, 950 N.Y.S.2d 163 [2d Dept. 2012], lv denied 20 N.Y.3d 860, 2013 WL 599587 [2013] ).
Finally, the court properly denied plaintiff's request for a missing witness instruction because he failed to meet his initial burden of establishing the availability of the uncalled witness, who was elderly, infirm, and living in Florida (see Matter of Chi–Chuan Wang, 162 A.D.3d 447, 449, 78 N.Y.S.3d 329 [1st Dept. 2018], lv. denied 32 N.Y.3d 904, 2018 WL 4440835 [2018] ; see generally DeVito v. Feliciano, 22 N.Y.3d 159, 165–166, 978 N.Y.S.2d 717, 1 N.E.3d 791 [2013] ; People v. Brown, 183 A.D.2d 569, 570, 584 N.Y.S.2d 4 [1st Dept. 1992], lv denied 80 N.Y.2d 901, 588 N.Y.S.2d 827, 602 N.E.2d 235 [1992] ). In any event, any error in denying the missing witness instruction was harmless (see CPLR 2002 ; Mahoney v. NAMCO Cybertainment, 282 A.D.2d 949, 950, 724 N.Y.S.2d 93 [3d Dept. 2001] ).
All concur except Carni, J., who concurs in the result in the following memorandum:
I join the majority's disposition and its reasoning except with respect to its analysis of plaintiff's contention that Supreme Court erred in admitting in evidence photographs from plaintiff's social media accounts for the purpose of establishing plaintiff's post-accident condition. Defendants established that the photographs were posted on social media after the date of the accident. Defendants failed to establish, however, that the photographs were actually taken after plaintiff's accident and thus failed to establish that they depicted plaintiff's post-accident condition. Defendants therefore failed to authenticate the photographs as accurately representing plaintiff's post-accident condition, and the court erred in admitting them (see Davidow v. CSC Holdings, Inc., 156 A.D.3d 682, 682, 67 N.Y.S.3d 275 [2d Dept. 2017] ; Rivera v. New York City Tr. Auth., 22 A.D.3d 554, 555, 802 N.Y.S.2d 247 [2d Dept. 2005] ; Truesdell v. Rite Aid of N.Y., 228 A.D.2d 922, 923, 644 N.Y.S.2d 428 [3d Dept. 1996] ). I agree with the majority, however, that the error in admitting the photographs was harmless (see CPLR 2002 ; Matter of Edick v. Gagnon, 139 A.D.3d 1126, 1128, 33 N.Y.S.3d 474 [3d Dept. 2016] ).