Opinion
15662 Index No. 155622/13 Case No. 2021–01404
04-05-2022
Lusia REINOSO, Plaintiff–Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY et al., Defendants–Appellants.
Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellants. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Anna J. Ervolina, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Webber, J.P., Singh, Gonza´lez, Kennedy, Higgitt, JJ.
Judgment, Supreme Court, New York County (Paul A. Goetz, J.), entered April 19, 2021, upon a jury verdict, insofar as appealed from as limited by the briefs, awarding plaintiff the principal sum of $5 million for, in effect, future economic loss over 17 years, and bringing up for review a trial ruling that granted plaintiff's application to call a rebuttal witness, unanimously modified, on the facts, to vacate the award for future medical expenses and remand for a new trial on those damages only, unless, within 20 days of service of a copy of this order, with notice of entry, plaintiff stipulates to reduce the award to $3,598,706.20, and otherwise affirmed, without costs.
The trial court providently exercised its discretion in permitting plaintiff to call her treating radiologist as a rebuttal witness (see Rowell v. Callahan, 233 A.D.2d 383, 383, 650 N.Y.S.2d 568 [2d Dept. 1996] ; Baumis v. General Motors Corp., 106 A.D.2d 789, 790, 484 N.Y.S.2d 185 [3d Dept. 1984], affd 66 N.Y.2d 777, 497 N.Y.S.2d 369, 488 N.E.2d 114 [1985] ; Hutchinson v. Shaheen, 55 A.D.2d 833, 834, 390 N.Y.S.2d 317 [4th Dept. 1976] ; Jerome Prince, Richardson on Evidence § 6–504 [Farrell 11th ed 1995]). While plaintiff's radiologist's testimony could have been offered as part of her case-in-chief, and her failure to offer the testimony at that time deprived her of the right to make use of it as affirmative evidence, she still had the right to offer the testimony in order "to impeach or discredit" the testimony of defendants’ expert radiologist ( Ankersmit v. Tuch, 114 N.Y. 51, 55, 20 N.E. 819 [1889] ; see Winchell v. Winchell, 100 N.Y. 159, 164, 2 N.E. 897 [1885] ["evidence was clearly admissible in rebuttal for the purpose of contradicting the testimony of the defendant...."]; O'Shea v. Sarro, 106 A.D.2d 435, 436, 438, 482 N.Y.S.2d 529 [2d Dept. 1984] [error to deny the plaintiff's application to recall her treating internist as a rebuttal witness in order "to correct distortions of his testimony and of the medical records, which were relevant to major issues in the case, and which [defense] counsel emphasized repeatedly to the jury"]; see generally People v. Harris, 98 N.Y.2d 452, 489, 749 N.Y.S.2d 766, 779 N.E.2d 705 [2002] ). Moreover, in civil cases, the trial court has discretion to allow rebuttal testimony that would have more appropriately been adduced as part of a party's case-in-chief (see Harris, 98 N.Y.2d at 489, 749 N.Y.S.2d 766, 779 N.E.2d 705 ; compare CPLR 4011 with CPL 260.30[7] ). This is so even though we reject plaintiff's argument that her treating radiologist technically did not testify as a rebuttal witness since she had not formally rested her case, which claim is clearly belied by counsels’ discussion with the court on the record.
The jury's award for future economic loss in the sum of $5 million is excessive to the extent indicated.