Opinion
2004889 KC
Decided March 31, 2005.
Appeal by defendant Pecoraro from a judgment of the Civil Court, Kings County (A. Fisher Rubin, J.), entered March 29, 2004, after a jury trial, finding him 70% liable and defendant Chowdhuri 30% liable, and awarding plaintiff the principal sum of $700,000.
Judgment unanimously reversed without costs and matter remanded for a new trial as to defendant Pecoraro.
PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
Plaintiff commenced this action to recover damages for injuries sustained while he was a passenger in a vehicle operated by defendant Chowdhuri which was hit in the rear by a vehicle operated by defendant Pecoraro. Upon a review of the record, we find that the court below properly charged the jury regarding Vehicle and Traffic Law § 1129 (a) and declined to charge the jury regarding Vehicle and Traffic Law §§ 1163 (c) and 1128 (a). Inasmuch as uncontroverted testimony established that Pecoraro resided in Florida, had a spinal cord injury and a plate and four screws in his neck, could not sit in a car for more than an hour, and could not attend a trial even if it were in Florida, we find that he was not an available witness and it was error for the court to provide the jury with a missing witness charge. Inasmuch as said error was not harmless, the judgment is reversed and the matter is remanded for a new trial as to defendant Pecoraro ( see e.g. People v. O'Hara, 253 AD2d 560).
In any event, a new trial is required on the issue of damages as to defendant Pecoraro, in view of the court below's abuse of its discretion in directing a verdict on the issue of serious injury and its failure to allow testimony from Pecoraro's medical expert ( see e.g. Conde v. Williams, 6 AD3d 569). A review of the record indicates that after the liability portion of the trial, the court directed a verdict on the issue of serious injury based upon the uncontroverted testimony of plaintiff and his medical expert. The record also indicates that, over plaintiff's objection, the court ruled that defendant Pecoraro's counsel could present testimony from both Dr. Phefer and Dr. Tantleff on his behalf. As instructed by the court, Pecoraro's counsel informed Dr. Phefer to appear in court at 9:30 A.M. on March 28, 2003, but counsel decided not to use Dr. Tantleff's testimony and did not tell him to appear. Due to the closure of the Williamsburg Bridge, Dr. Phefer allegedly could not appear in court at 9:30 A.M. Nevertheless, the trial continued and Dr. Phefer had not appeared by the early afternoon, although the bridge had been re-opened for several hours. Counsel then informed the court that Dr. Tantleff was available to testify that day. The court refused to allow Dr. Tantleff to testify since counsel had previously decided not to call him as a witness. Approximately two hours later, prior to summations, Dr. Phefer still had not appeared and counsel informed the court that Dr. Tantleff was present in court and was prepared to testify. The court informed counsel that it had already ruled that Dr. Tantleff could not testify.
When counsel refused to rest, the court directed a verdict on the issue of serious injury based on the uncontroverted testimony of plaintiff and his medical expert.
We pass on no other issue.