Benloss v Bodenmiller - courts.state.ny.us · BENLOSS v. BODENMILLER INDEX NO. 18646/2011 FARNETI, J. PAGE 2 is hereby DENIED in its entirety for the reasons set forth hereinafter.

Benloss v Bodenmiller2015 NY Slip Op 31606(U)

July 14, 2015Supreme Court, Suffolk CountyDocket Number: 18646/2011

Judge: Joseph FarnetiCases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various state andlocal government websites. These include the New YorkState Unified Court System's E-Courts Service, and the

Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

SHORT FORM ORDER INDEX NO. 18646/2011

PRESENT:

SUPREME COURT- STATE OF NEW YORK

l.A.S. TERM, PART 37 - SUFFOLK COUNTY

HON. JOSEPH FARNETI Acting Justice Supreme Court

JAYSON R. BENLOSS,

ORIG. RETURN DATE: APRIL 28, 2014 FINAL SUBMISSION DATE: MAY 1, 2014 MTN. SEQ. #: 001 MOTION: MD

Plaintiff,

-against- PL TF.S/PET'S ATTORNEY:

KASSANDRA B. BODENMILLER and ROBERT W. BODENMILLER,

RAPPAPORT, GLASS, LEVINE & ZULLO, LLP 1355 MOTOR PARKWAY HAUPPAUGE, NEW YORK 11749 631-293-2300

Defendants. DEFT'S/RESP ATTORNEY: KELLY, RODE & KELLY, LLP 330 OLD COUNTRY ROAD - SUITE 305 MINEOLA, NEW YORK 11501 516-739-0400

Upon the following papers numbered 1 to _ 7 _ read on this motion ___ _ TO SET ASIDE JURY VERDICT

Post-Trial Notice of Motion and supporting papers 1-3 ; Post-Trial Memorandum of Law _4_ ; Affirmation in Opposition and supporting papers 5 6 ; Reply Affirmation _7_; it is,

ORDERED that this motion by plaintiff JAYSON R. BENLOSS for an Order:

(1) striking the testimony of the defendants' medical expert, Dr. Eric Freeman, for failure of the defendants to comply with CPLR 3101 (d) (1) (i) and New York State Trial Court Uniform Rule 202.17, regarding the exchange of expert and medical information prior to trial;

(2) granting a directed verdict on the issue of plaintiff's serious injury (Insurance Law§ 5102 [d]); and

(3) for judgment notwithstanding the verdict,

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is hereby DENIED in its entirety for the reasons set forth hereinafter. The Court has received opposition to this application from defendants KASSANDRA B. BODENMILLER and ROBERT W. BODENMILLER.

The within action arises out of a two-car motor vehicle accident that occurred on March 28, 2011 , at the intersection of Route 109 and Straight Path in Lindenhurst, New York. The two vehicles came in contact when defendants' vehicle made a left hand turn in front of plaintiff's vehicle. After a full trial on liability on October 29, 2013 (Tarantino, J.), a jury determined that defendants were 100% liable for the happening of the accident. The action was thereafter assigned to this Court for a trial on the issue of damages. The damages trial was held on January 28, 29, 30, and 31 , 2014. On January 31 , 2014, a jury returned a unanimous verdict in defendants' favor, finding that plaintiff did not sustain a "serious injury" as that term is defined by Insurance Law§ 5102 (d). In particular, the jury found that plaintiff did not suffer a permanent consequential limitation of use of a body organ or member, a significant limitation of use of a body organ or member, or a medically determined injury or impairment of a non-permanent nature as a result of the accident that prevented him from performing substantially all of the material acts that constituted his usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the accident (see Insurance Law§ 5102 [d]).

Plaintiff has now filed the instant motion for the relief described hereinabove. These applications were made by plaintiff at the conclusion of the presentation of evidence during the damages trial of this action, and again after the jury verdict. The Court reserved decision pending submission of the parties' briefs.

Plaintiff alleges that as a consequence of the accident, he suffered a lumbar sprain, a cervical sprain and two meniscal tears in his left knee. At the time of the accident, plaintiff was 26 years old, and employed as a bank loan processor. He allegedly had no prior history of back or knee complaints. After a three month course of physical therapy, massage and acupuncture treatments, plaintiff underwent a left knee arthroscopy. Plaintiff contends that he actively treated for his injuries for a total of eight months, and intermittently thereafter. Further, plaintiff claims that from the date of the accident through the post­surgical healing period, he lost 103 days from work. Based upon the foregoing, plaintiff argues that at least with respect to the "90/180" day category of serious injury, the jury's verdict was against the weight of the evidence. Therefore,

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plaintiff contends that he is entitled to a directed verdict on the issue of serious injury.

Moreover, plaintiff seeks to strike the entire trial testimony of defendants' expert, Dr. Eric Freeman, on the basis that defendants failed to comply with CPLR 3101 (d) (1) (i) and Uniform Rules for Trial Courts (22 NYCRR) § 202.17, regarding the exchange of expert and medical information. Plaintiff claims that Dr. Freeman's testimony at trial came as a surprise to plaintiff, as Dr. Freeman testified that plaintiff suffered no knee injury at all, which was allegedly inconsistent with the expert witness disclosure provided by defendants on May 3, 2012, and then amended on January 8, 2014.

The Court of Appeals has held that in the context of a motion to set aside a verdict, "[it] is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Ziecker v Orchard Park, 75 NY2d 761 [1989], quoting Cohen v Hallmark Cards, 45 NY2d 493 [1978]; see also Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Messina v Staten Is. Univ. Hosp., 121 AD3d 867 [2014]; Dellamonica v Carvel Corp., 1 AD3d 311 [2003]; Brown v City of New York, 275 AD2d 726 [2000]). In contrast, if the evidence is such "that it would not be utterly irrational for a jury to reach the result it has determined upon . . . the court may not conclude that the verdict is as a matter of law not supported by the evidence" (Cohen v Hallmark Cards, 45 NY2d 493, supra). In considering such a motion, the 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 non-moving party (see Figueroa v Sliwowski, 43 AD3d 858 [2007]; Hand v Field, 15 AD3d 542, 543 [2005]; Messina, 121 AD3d 867).

In view of the testimony and evidence adduced at the damages trial of this action, the Court finds that the verdict of the jury is amply supported by the weight of the evidence, and was reached based upon a fair interpretation of the evidence. The Court finds that based upon, among other things, the testimony of Dr. Freeman, as well as the testimony of plaintiff himself, it cannot be said that the verdict in favor of defendants was not supported by the evidence as a matter of law. Defendants indicate that plaintiff's case contained a "material falsehood" concerning plaintiff's ability to run after the accident, which defendants argue was given credence by the jury and discredited plaintiff himself. Where conflicting

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evidence is presented, great deference is accorded to the credibility determinations made by the jury (see Biello v Albany Mem. Hosp., 49 AD3d 1036 [2008]; Perry v Wine & Roses, Inc., 40 AD3d 1299 [2007] ; Morgan v New York City Tr. Auth., 24 AD3d 639 [2005]). Furthermore, contrary to plaintiff's contention, defendants did contest plaintiff's presentation at trial with respect to the "90/180" category of serious injury. The evidence did not preponderate so heavily in plaintiff's favor that the jury could not have reached the verdict in favor of the defendants by any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Easton v Falzarano, 102 AD3d 826 [201 3]; Lopreiato v Scotti, 101 AD3d 829 [2012] ; Daniels v Simon, 99 AD3d 658 [2012); Rosenfeld v Baker, 7 8 AD3d 81 0 [201 O]).

In addition, the jury's assessment of credibility of experts who provided conflicting testimony at trial "is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts" (Saccone v Gross, 84 AD3d 1208, 1208-1209 [2011] [internal quotation marks omitted]). "Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert" (Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588 [2011] ; see Bailey v Brookdale Univ. Hosp. & Med.Ctr., 98 AD3d 545 [2012]; Lolly v Brookdale Univ. Hosp. & Med. Ctr. , 90 AD3d 862 [2011]).

With respect to Dr. Freeman's testimony, the Court finds that under the circumstances presented, plaintiff has failed to proffer any authority to strike his testimony at this juncture. The Court finds that defendants' expert witness disclosure which indicated, among other things, that Dr. Freeman would "testify regarding any and all evidence offered by the plaintiff and any other party," "was not so inadequate or inconsistent with the expert's testimony as to have been misleading, or to have resulted in prejudice or surprise" (Casimir v Bar-Zvi, 36 AD3d 578, 579 [2007], quoting Gagliardotto v Huntington Hosp., 25 AD3d 758, 759 [2006]; see Andalora v Town of Ramapo, 242 AD2d 354 [1997]; Beard v Brunswick Hosp. Ctr., 220 AD2d 550 [1995]). Even assuming, arguendo, that defendants' disclosure was inadequate, it has been held that noncompliance with expert witness notice requirements of CPLR 3101 (d) is not reversible error where the failure was not willfu l and prejudicial and no demonstrated prejudice resulted from the inadequate notice (see Gilbert v Luvin, 286 AD2d 600 [2001]; Ateser v Becker, 272 AD2d 219 [2000]; Gallo v Linkow, 255 AD2d 11 3 [1998]; Douglas v St. Joseph's Hosp., 246 AD2d 695 [19981). Instructive on this issue is the language in Gilbert:

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Defense counsel addressed the anemia/hypotension theory through testimony of both of plaintiff's experts and through the testimony of another defense expert without any objection by plaintiff. Plaintiff's counsel never requested an adjournment to prepare and re-call his expert to give further testimony rebutting the anemia/hypotension theory. He could have so requested if he truly believed he had not previously had a fair opportunity to prepare the expert on that issue

FARNETI, J. PAGE 5

Gilbert, 286 AD2d at 601 [citations omitted]). In any event, as discussed, the Court finds that the expert disclosure in view of Dr. Freeman's testimony was not so inadequate as to have resulted in prejudice or surprise to plaintiff.

Accordingly, this motion by plaintiff is DENIED in its entirety.

The foregoing constitutes the decision and Order of the Court.

Dated: July 14, 2015 H Ac ing Justice Supreme Court

X FINAL DISPOSITION NON-FINAL DISPOSITION

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