Opinion
2018–14261 Index No. 100042/15
01-12-2022
Adel SHEHATA, appellant, v. Jose KORUTHU, respondent.
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant. Rivkin Radler LLP, Uniondale, NY (Henry Mascia and Cheryl Korman of counsel), for respondent.
Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.
Rivkin Radler LLP, Uniondale, NY (Henry Mascia and Cheryl Korman of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, WILLIAM G. FORD, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Kim Dollard, J.), entered October 10, 2018. The judgment, upon a jury verdict finding that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, is in favor of the defendant and against the plaintiff dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
The plaintiff allegedly sustained personal injuries in a motor vehicle accident. Thereafter, the plaintiff commenced this action to recover damages for personal injuries. A jury trial on the issues of serious injury and damages was held. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The plaintiff moved, in effect, pursuant to CPLR 4404(a) to set aside the verdict. The Supreme Court denied the plaintiff's motion, and a judgment was entered in favor of the defendant and against the plaintiff dismissing the complaint. The plaintiff appeals.
During the trial, the defendant's counsel elicited testimony from the plaintiff concerning a workers' compensation claim that he filed for the subject motor vehicle accident. The Supreme Court instructed the jury that this testimony concerning workers' compensation was stricken from the record and should not be considered. Thereafter, during summation, the defendant's counsel twice referenced the plaintiff's workers' compensation claim. Each time, the court sustained the plaintiff's counsel's objection and instructed the jury to disregard said comments as they were irrelevant.
The plaintiff asserts that a new trial is warranted because the Supreme Court's instructions did not cure the prejudice resulting from the testimony and summation comments. The plaintiff, however, failed to move for a mistrial on this ground, and, thus, waived his right to seek relief on this ground pursuant to CPLR 4404(a) (see Virgo v. Bonavilla, 49 N.Y.2d 982, 983–984, 429 N.Y.S.2d 165, 406 N.E.2d 1059 ; Matosic v. Gelb, 232 A.D.2d 221, 647 N.Y.S.2d 781 ; Mathews v. Coca–Cola Bottling of N.Y., 188 A.D.2d 590, 591, 591 N.Y.S.2d 489 ; Kamen v. City of New York, 169 A.D.2d 705, 706, 564 N.Y.S.2d 190 ). In any event, in sustaining the plaintiff's objections to the comments and providing curative instructions, the court corrected any possible prejudice resulting from the subject testimony and summation comments (see Richardson v. City of New York, 109 A.D.3d 808, 809, 971 N.Y.S.2d 154 ; Fekry v. New York City Tr. Auth., 75 A.D.3d 616, 617, 906 N.Y.S.2d 297 ).
Contrary to the plaintiff's contention, the Supreme Court properly denied his motion to strike the testimony of the defendant's expert on the ground that the expert made prior inconsistent statements in his sworn reports. "It is within the province of the jury to determine an expert's credibility" (see Saccone v. Gross, 84 A.D.3d 1208, 1209, 923 N.Y.S.2d 878 ). Instead, the proper remedy for the expert's allegedly inconsistent statements was to impeach his testimony (see CPLR 4515 ; Cheathem v. Ostrow, 100 A.D.3d 819, 954 N.Y.S.2d 598 ). Further, we do not reach the plaintiff's contention that the court should have stricken the defendant's expert's testimony because it was outside the scope of the defendant's CPLR 3101(d) disclosure. It is the appellant's obligation to assemble a proper record on appeal (see Hanspal v. Washington Mut. Bank, 153 A.D.3d 1329, 1332, 61 N.Y.S.3d 324 ; 425 E. 26th St. Owners Corp. v. Beaton, 128 A.D.3d 766, 767, 10 N.Y.S.3d 127 ). Without a complete record that includes the defendant's CPLR 3101(d) disclosure, this Court is unable to render an informed decision on the merits of this issue (see Rivera v. City of New York, 80 A.D.3d 595, 596, 915 N.Y.S.2d 281 ).
The Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law. "A motion pursuant to CPLR 4401 or 4404 for judgment as a matter of law may be granted only ‘where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party’ " ( Caliendo v. Ellington, 104 A.D.3d 635, 636, 960 N.Y.S.2d 471, quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ). "In considering such a motion, ‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’ " ( Hamilton v. Rouse, 46 A.D.3d 514, 516, 846 N.Y.S.2d 650, quoting Szczerbiak v. Pilat, 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ). Here, viewing the facts in the light most favorable to the defendant, there was a rational process by which the jury could find that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ; Gouvea v. Lesende, 127 A.D.3d 811, 6 N.Y.S.3d 607 ).
Moreover, the Supreme Court properly denied that branch of the plaintiff's motion which was, in effect, pursuant to CPLR 4044(a) to set as the verdict as contrary to the weight of the evidence and for a new trial. "A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence" ( Maharaj v. LaRoche, 121 A.D.3d 953, 993 N.Y.S.2d 915 ; see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ). "If the verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view" ( Ashby v. Mullin, 56 A.D.3d 588, 589, 868 N.Y.S.2d 687 ). " ‘Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert’ " ( Eastman v. Nash, 153 A.D.3d 1323, 1325, 61 N.Y.S.3d 608, quoting Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d 587, 588, 915 N.Y.S.2d 631 ). Here, it was a fair interpretation of the evidence for the jury to credit the testimony of the defendant's expert over that of the plaintiff's expert concerning the cause of the injuries to the plaintiff's shoulders (see Bohan v. DeLucia, 178 A.D.3d 999, 1000, 116 N.Y.S.3d 315 ; Canale v. Khananayev, 173 A.D.3d 965, 967, 102 N.Y.S.3d 675 ; Eastman v. Nash, 153 A.D.3d at 1325, 61 N.Y.S.3d 608 ).
IANNACCI, J.P., CHAMBERS, MILLER, and FORD, JJ., concur.