Opinion
2002-1282 K C.
Decided December 17, 2003.
Appeal by defendants from a judgment of the Civil Court, Kings County (S. Hinds-Radix, J.), dated May 24, 2002, in favor of plaintiff in the principal sum of $165,000.
Judgment unanimously affirmed without costs.
PRESENT: ARONIN, J.P., GOLIA and RIOS, JJ.
The defendants' contention, that plaintiffs doctor should not have been permitted to testify concerning written medical reports of non-testifying health care providers about MRIs and CAT scans that were not introduced into evidence, was not preserved for appellate review since there was no objection to his testimony ( Hambsch v. New York City Tr. Auth., 63 NY2d 723; see Toure v. Avis Rent A Car Sys., 98 NY2d 345, 351).
The court did not abuse its discretion in refusing to permit defendants to present testimony of a doctor who examined plaintiff on behalf of his no-fault insurance carrier, which was not a party to this litigation ( Stern v. Calzado, 163 AD2d 299). Defendants did not advise the court of their intention to use him as a witness until the midst of the trial, which effectively deprived plaintiff of an adequate opportunity to prepare for his cross-examination ( Stern v. Calzado, 163 AD2d 299, supra; see also Peterson v. Zuercher, 198 AD2d 797).
The court properly found that the plaintiff sustained a serious injury pursuant to Insurance Law § 5102 (d) as a matter of law. The evidence presented by plaintiffs treating physician revealed that plaintiff suffered a significant limitation of use of a body function or system as well as a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constituted his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
Finally, the award was not excessive. The amount of damages to be awarded for personal injuries is primarily a question of fact for the jury. An award is excessive or inadequate if it deviates materially from what would be reasonable compensation ( see CPLR 5501 [c]).
Considering the totality of the plaintiffs injuries and the period of disability accompanied by pain and suffering, we find that the jury verdict of $165,000 did not deviate materially from what would be reasonable compensation ( Mogil v. Gorgone, 225 AD2d 674; see also Orris v. Orris, 189 AD2d 866).