Opinion
February 16, 1999
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the appeals from the decisions dated July 22, 1997, and September 19, 1997, are dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is reversed, on the law, and a new trial is granted; and it is further,
Ordered that one bill of costs is awarded to abide the event of the new trial.
On the afternoon of March 20, 1990, the plaintiff was making a right turn from a four-lane roadway when his vehicle was struck by a van owned and operated by the defendants. The plaintiff subsequently suffered a stroke, and at the time of trial he had no memory of how the accident had occurred. However, a passenger in the plaintiff's vehicle testified that the collision occurred when the defendants' van, which was traveling at an excessive rate of speed in the parking lane, struck the plaintiff's vehicle as the plaintiff was making a right turn from the right-hand turning lane. In contrast, the defendant driver testified that he was driving at about 20 to 25 miles per hour and that the accident occurred when the plaintiff, who was stopped in the left-hand turning lane, suddenly traversed two lanes of traffic in an attempt to make a right turn. At the conclusion of the trial, the jury found the defendants 80% at fault for the happening of the accident.
On appeal, the defendants contend that they were deprived of a fair trial by the cumulative impact of several of the trial court's evidentiary rulings. We agree. The record reveals that the witness who had been a passenger in the plaintiff's car had previously commenced a lawsuit against the plaintiff, and had served a verified bill of particulars in that action which alleged that the plaintiff had negligently attempted to make a right turn from the left-hand turning lane. Since the bill of particulars contained a sworn statement which was materially inconsistent with the testimony given by the plaintiff's passenger at trial, the court erred in refusing to admit the bill of particulars into evidence (see, CPLR 4514; Ryan v. Dwyer, 33 A.D.2d 878).
We further find that the court improperly denied the defendants' request for a charge on the emergency doctrine. A party is entitled, to an emergency doctrine charge if "'under some reasonable view of the evidence, an actor was confronted by a sudden and unforseen occurrence not of the actor's making'" (Bond-Green v. McNally, 233 A.D.2d 414, 415; see, Barath v. Marron, 255 A.D.2d 280; Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327). Here, viewing the evidence in the light most favorable to the defendants, who requested the charge, we find that a reasonable view of the evidence supported instructing the jury on the emergency doctrine (see, Barath v. Marron, supra; Sonntag v. Dor-Vac Corp., 192 A.D.2d 594).
In this unified trial, the court should not have precluded the plaintiff's treating physician, who was called as a witness by the defendants, from offering his opinion as to whether the plaintiff's stroke was related to the injuries he sustained in the accident. CPLR 3101 (d) (1) (i) requires a party to identify the expert witnesses who are expected to be called at trial, and to disclose the subject matter on which the expert is expected to testify. However, this rule applies only to experts retained to give, testimony at trial, and not to treating physicians (see, Casey v. Tan, 255 A.D.2d 900; Overeem v. Neuhoff, 254 A.D.2d 400; Stark v. Semeran, 244 A.D.2d 894).
In addition, although a Trial Judge may "'assume an active role in the examination of witnesses where proper or necessary * * * to facilitate or expedite the orderly process of the trial'" (Accardi v. City of New York, 121 A.D.2d 489, 491, quoting People v. Ellis, 62 A.D.2d 469, 470; Givens v. Sinert, 243 A.D.2d 443, 444), here the court's examination of the physician called by the defendants was not even-handed and impartial, and blunted the testimony of the physician's testimony (see, Gerichten v. Ruiz, 80 A.D.2d 578).
In view of our determination that a new trial is warranted, we do not reach the defendants' remaining contentions regarding the propriety of the damages, award.
Joy, J. P., Krausman, Florio and Luciano, JJ., concur.