Opinion
November 24, 1986
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a new trial on the issue of damages only.
The liability of the defendants for the injuries suffered by the plaintiffs was established at trial and the defendants do not contest that finding on appeal. The judgment must be reversed, however, and a new trial ordered on the issue of damages, since the trial court admitted evidence on disc injuries suffered by the plaintiff Herbert Porter and of loss of sexual relations with respect to the plaintiff Phyllis Porter's loss of consortium claim, even though neither item was among the elements of damages specified in the plaintiffs' bill of particulars, and there is no indication in the record that the defendants should have known of such injuries (see, Sharkey v Locust Val. Mar., 96 A.D.2d 1093; Solomon v Stroler, 82 A.D.2d 756). The plaintiffs' efforts to establish that the defendants were aware of the disc injuries are dependent on matters dehors the record which cannot be considered by this court (see, Broida v Bancroft, 103 A.D.2d 88; Liberty Mut. Ins. Co. v Prudential Prop. Cas. Ins. Co., 93 A.D.2d 814, affd 59 N.Y.2d 1021).
We have considered the defendants' remaining contentions and find them to be either unpreserved or without merit. Lazer, J.P., Bracken, Brown and Lawrence, JJ., concur.