Bessie Caldwell et al., Appellants,v.Cablevision Systems Corporation, et al., Defendants, Communications Specialists, Inc., Respondent.

Brief

N.Y.January 8, 2013

To be Argued by: CHRISTOPHER SIMONE (Time Requested: 20 Minutes) Westchester County Clerk’s Index No. 1404/07 Appellate Division–Second Department Docket Nos. 2009-04955 and 2009-06262 Court of Appeals of the State of New York BESSIE CALDWELL and JOHN CALDWELL, Plaintiffs-Appellants, – against – CABLEVISION SYSTEMS CORPORATION, CABLEVISION LIGHTPATH, INC. and CABLEVISION LIGHTPATH—NY, INC., Defendants, – and – COMMUNICATIONS SPECIALISTS, INC., Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT SHAUB, AHMUTY, CITRIN & SPRATT, LLP 1983 Marcus Avenue Lake Success, New York 11042 Tel.: (516) 488-3300 Fax: (516) 488-2324 Appellate Counsel to: WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP Attorneys for Defendant-Respondent Date Completed: July 20, 2012 RULE 500.1(;0 CORPORATE DISCLOSURE STATEMENT Defendant Communications Specialists, Inc. does business as Van Guard Energy_ It has no parents, subsidiaries or affiliates. TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................... v INTRODUCTION ........................................................................................... 1 COUNTERSTATEMENT OF FACTS ........................................................... 5 A. The Road Project ................................................................................... 5 B. There Was No Test Pit In Front Of Plaintiff s Driveway ............................................................... 7 C. The Alleged Accident ........................................................................... 8 D. The Condition Of The Road .................................................................. 9 E. Dr. Krosser's Testimony ..................................................................... 12 F. Deliberations And Verdict .................................................................. 15 G Th A 11 D'" , D .. 16 . e ppeuate IVlSlon s eClSlon ................................................... .. H. Plaintiff s Disingenuous Argument On Appeal .......................................................................... 1 9 ARGUMENT POINT I PLAINTIFF FAILED TO PRESERVE FOR APPELLATE REVIEW THE TRIAL COURT'S ALLEGED ERROR IN NOT STRIKING DR. KROSSER'S TESTIMONY OR GIVING A SPECIFIC JURY INSTRUCTION REGARDING F ACTUAL TESTIMONY BY A PAID WITNESS ........................................................................................... 23 A. Applicable Standard ............................ · ............................................... 23 B. Plaintiff Abandoned Her Request To Strike, Agreed With The Relief Fashioned By The Court And Took No Exception To The Charge .................................. 24 C. Plaintiff Waived Her Appellate Contentions ...................................... 27 POINTn THE APPELLATE DIVISION CORRECTLY CONCLLTDED THAT, IN LIGHT OF THE LIMITED NA TURE OF DR. KROSSER'S TESTIMONY, THE TRIAL COURT'S ALLEGED ERROR IN F AILING TO GIVE A SPECIFIC CHARGE REGARDING FACTUAL TESTIMONY BY A PAID WITNESS WAS AT MOST HARMLESS ERROR THAT DID NOT MA TERIALL Y AFFECT THE OUTCOME OF THE TRIAL. IN ADDITION, THE ULTIMATE ISSUE ON APPEAL IS UNREVIEWABLE BY THIS COURT UNDER THESE CIRCUMSTANCES .......................................... 29 A. The Correct Harmless Error Standard ................................................. 29 1. New York Courts Apply The Residual Evidence Analysis ........................................................... 30 2. Admission Of Cumulative Evidence Of Which Plaintiff Cannot Show Any Prejudice Is Harmless ....................... 33 B. The Appellate Division Correctly Found Any Alleged Error Harmless ................................................... 35 1. The Residual Evidence Overwhelmingly Favored CS I ....................................................... 35 2. Dr. Krosser's Testimony Did Not Taint The Jury Verdict. ........................................................... 36 C. The Issues On Appeal Are Not Reviewable ....................................... 39 1. The Appellate Division Did Not Reverse Or Modify On New Facts ................................................ 39 11 2. Mixed Questions Of Law And Fact Permit Only Limited Review ................................................. 41 3. There Was No Abuse Of Discretion As A Matter Of Law ................................................... 41 POINT III PLAINTIFF'S PROPOSED PER SE EXCLUSIONARY RULE FOR F ACT WITNESSES COMPENSA TED BEYOND THE STATUTORY FEE IS LEGALLY UNSUPPORTABLE, IMPRACTICABLE AND BAD POLICY. THE APPELLATE DIVISION CO RREC TL Y FOUND THA T THE APPROPRIA TE REMEDY, WHERE A GENUINE ISSUE OF EXCESSIVE COMPENSA TION EXISTS, IS TO PERMIT OPPOSING COUNSEL TO EXPLORE THE ISSUE ON CROSS-EXAMINA TION AND SUMMATION .............................................................................................. 44 A. It Is Neither Illegal Nor Unethical To Compensate Fact Witnesses For Their Time ...................................... 45 B. The CPLR Does Not Cap Witness Fees ............................................. 46 C. Excluding Testimony Of A Witness Compensated Beyond CPLR 8001 Is Impracticable And Bad Policy ....................... 48 D. None Of The Dangers Plaintiff Complains Of Exist ............................................................... 52 1. Plaintiff Unavailingly Relies Upon Dissimilar Law And Outdated, Subsequently Amended Contract Treatises .................. 53 2. Plaintiffs Parade Of Inapposite Cases .......................................... 56 E. Plaintiff Cannot Identify Any Aspect Of Dr. Krosser's Testimony Susceptible To Any Dangers She Cites ............................ 59 111 F. Proper Redress Is Cross-Examination And Summation Comment .................................................................. 61 POINT V AN ALTERNATE GROUND FOR AFFIRMANCE FURTHER JUSTIFIES THE RESULT REACHED IN THIS CASE ............................. 63 A. Plaintiff Failed To Present A Prima Facie Case Of Negligence ........................................................ 64 1. Applicable Law .............................................................................. 64 2. Plaintiffs Claim That She Tripped Where A Test Pit Had Been Backfilled Is Speculation ................................. 65 CONCLUSION ............................................................................................. 67 IV TABLE OF AUTHORITIES Cases A.R. Fuels, Inc. v. City of New York 63 N.Y.2d 748 (1984) ..................................................................... 33, 38 Acunto v. Conklin 260 A.D.2d 787 (3d Dep't 1999) ............................................... . ........ 42 Adams v. Genie Indus., Inc. 14 N.Y.3d 535 (2010) ...................................................................... 34, 39 Barbagallo v. Americana Corp. 25 N.Y.2d 655 (1969) ....................................................................... 30, 36 Caldwell v. Cablevision Systems Corp. 86 A.D.3d 46 (2d Dep't 2011 ) .................................................... 40, 47, 62 Chapnlan v. California 386 U.S. 18 (1967) .................................................................................. 30 Clifford v. Hughes 139 App. Div. 730 (2d Oep't 1910) ................................................. 53, 56 Cohen v. Hallmark Cards 45 N.Y.2d 493 (1978) ............................................................................. 64 Davanzo v. Fisher 304 A.D.2d 452 (1 st Dep't, 2003) ......................................................... 42 Davis v. McDaniel 60 Misc.2d 390 (Civ. Ct., New York Co. 1969) ............................... 47, 48 Dudley v. Kerwick 52 N.Y.2d 542 (1981) ............................................................................. 48 Fahy v. Connecticut 375 U.S. 85 (1963) .................................................................................. 30 v Feinberg v. Saks & Co. 56 N.Y.2d 206 (1982) ............................................................................. 27 Fishman v. Scheuer 39 N.Y.2d 502 (1976) ............................................................................. 30 Florida Bar v. Jackson 490 So. 2d 935 (Fla., 1986) ................................................................... 57 Flynn v. Manhattan and Bronx Surface Tr. Operating Auth. 61 N.Y.2d 769 (1984) ................................................................ 31, 33, 38 Garvin v. Rosenberg 204 A.D.2d 388 (2d Dep't 1994) ............................................................ 65 Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Assoc. 865 F. Supp. 1516 (S.D. Fl., 1994) ........................................................ 57 Green Island Assoc. v. Lawler, Matusky & SkelJy Engrs. 170 A.D.2d 854 (3d Dep't 1991) ..................................................... 34, 38 Hartman v. Mountain Val. Brew Pub 301 A.D.2d 570 (2d Dep't 2003) ........................................................... 64 Hedeman v. Fairbanks, Morse & Co. 286 N.Y. 240 (1941) ............................................................................... 41 Hunt v. Bankers & Shippers Ins. Co. of N.Y. 50 N.Y.2d 938 (1980) ............................................................................. 23 In re Howard 372 N.E.2d 371 (Ill. 1977) ..................................................................... 57 In re Telcar Group, Inc. 363 B.R 345 (E.D.N.Y. 2007) ............................................................... 58 VI Johnson, Drake & Piper, Inc. v. State of New York 43 N.Y.2d 677 (1977) ............................................................................. 41 Judson v. Fielding 253 N.Y. 596 (1930) ............................................................................... 32 Keane v. Keane 8 N.Y.3d 115 (2006) ............................................................................... 36 Khan v. Galvin 206 A.D.2d 776 (3d Dep't 1994) ..................................................... 31, 32 Louman v. Town of Greenburgh 60 A.D.3d 915 (2d Dep't 2009) ........................................................ 64, 66 Maglione v. Cunard Steamship Co. 30 A.D.2d 784 (I st Oep't 1968) ............................................................ 57 Manning v. 6638 18th Avenue Realty Corp. 28 A.D.3d 434 (2d Dep't 2006) .................................................. 64, 65, 67 Matter of Gissette Angela P. 80 N.Y.2d 863 (1992) ............................................................................. 41 Matter of Jason A. 7 A.D.3d 791 (2d Dep't 2004) ............................................................... 42 Matter of Khan v. New York State Dept. of Health 96 N.Y.2d 879 (2001) ........................................................................... 23 Matter of Leala T. 55 A.D.3d 997 (3d Dep't 2008) ............................................................. 42 Matter of Robinson 151 App. Div. 589 (1st Dep't, 1912) ..................................................... 56 Matter of Stephen 239 A.D.2d 963 (4th Dep't. 1997) .......................................................... 49 Vll Merrill v Albany Med. Ctr. Hosp. 71 N.Y.2d 990 (1988) ............................................................................. 24 Nappi v. Gerdts 103 A.D.2d 737 (2d Dep't 1994) ...................................................... 31, 33 Northern Securities Co. v. United States 193 U.S. 197, 400, 24 S.Ct. 436 L.Ed. 679 ............................................ 48 Parochial Bus Systems, Inc. v. Board of Education 60 N.Y.2d 539 (1983) ............................................................................. 63 Patron v. Patron 40 N. Y.2d 582 (1976) ............................................................................ 42 Pauzar v. Children's Hosp. of Buffalo 167 A.D.2d 933 (4th Dep't 1990) .......................................................... 47 People v. Branch 83 N.Y.2d 663 (1994) ............................................................................. 62 People v. Chin 67 N.Y.2d 22 (1986) ............................................................................... 42 People v. Crimmins 36 N.Y.2d 230 (1975) ....................................................................... 30, 31 People v. Harrison 57 N.Y.2d 470 (1982) ............................................................................. 41 People v. McClean 69 N.Y.2d 426 (1987) ............................................................................. 21 Physician's Choice of Arizona, Inc. v. Visual Changes Skin Care Int' 1, Inc. 2006 WL 726903 (D. Az, 2006) ............................................................ 58 Rivera v. City of New York 107 A.D.2d 331 (I st Dep't 1985) ........................................................... 42 Vll1 Rocheux IntI. v. U.S. Merchants Financial Group 2009 WL 3246837 .................................................................................. 58 Small v. Lorillard Tobacco Co., Inc. 94 N.Y.2d 43 (1999) ............................................................................... 42 Soto v. New York City Tr. Auth. 6 N. Y.3d 487 (2006) ............................................................................... 36 Suria v. Shiffman 67 N.Y.2d 87 (1986) ......................................................................... 23, 27 Teplitskaya v. 3096 Owners Corp. 289 A.D.2d 477 (2d Dep't 2001) ........................................................... 64 United States v. Cervantes-Pacheco 826 F.2d 310 [5th Cir. 1987] .................................................................. 58 United States v. Persico 832 F.2d 705 (2d Cir 1987) .................................................................... 64 Walker v. State of New York 111 A.v.2d 164 (2d Dep't 1985) .................................... 29, 31, 33 passim N.Y. Constitution N.Y. Constitution, Article VI, § 3(a) ................................................. 36, 39, 40 Statutes CPLR 2002 .............................................................................................. 29, 37 CPLR 2303 .............................................................................................. 25, 47 CPLR 2308 .................................................................................................... 25 CPLR 4404 ................................................................................................ 1, 16 IX CPLR 5501 ........................................................................................ 39, 40, 63 CPLR 800 1 ............................................................................ 16, 25, 46 passim Judiciary Law § 2-b ....................................................................................... 49 Other Authorities 8 Wigmore, Evidence § 2202 (1961) ...................................................... 54, 55 22 NYCRR § 1200, Rule of Professional Conduct 3.4(b)(I) ....................... 45 Alexander, Practice Commentaries, CPLR 2002 .................................... 30, 36 American Bar Association Formal Opinion 96-402 ..................................... 46 Karger, The Powers of the New York Court of Appeals (3d ed. 1997) .. 40,42 Kilson and Gabay Rafiy, Paying a Fact Witness For Time Needed To Prepare and Testify, NYLJ, July 14, 1997 ................ 46 PAEth. Ope 95-126A .................................................................................... 58 x COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------}C BESSIE CALDWELL and JOHN CALDWELL, Plaintiffs-Appellants, -against- CABLEVISION SYSTEMS CORPORATION, CABLEVISION, LIGHTPATH, INC., CABLEVISION LIGHTPATH-NY, INC. Defendants, -and- COMMUNICATIONS SPECIALISTS, INC., Defendant-Respondent. -----------------------------------------------------------}C INTRODUCTION Defendant Communications Specialists, Inc. (hereinafter CSI) submits this brief in response to plaintiffs' appeal, per this Court's grant of leave, from an Opinion & Order of the Appellate Division, Second Department, entered May 31, 2011, that affirmed an amended judgment of the Supreme Court, Westchester County (Liebowitz, J.) entered May 18, 2009, as, after a jury trial on the issue of liability, and upon an order of the same court entered March 13, 2009 denying their motion pursuant to CPLR 4404(a) to set aside the verdict as 1 contrary to the weight of the evidence, is in favor of CSI and against them dismissing the complaint. Contrary to plaintiffs assertion, this is not a case of first impression in New York of enormous importance. This is nothing more than a routine slip and fall case - an extremely weak one - that the jury rightfully rejected. To install an underground fiber optic cable, CSI had excavated a narrow trench along the street on which plaintiff lived. Beforehand, CSI manually dug "test pits" to locate and avoid striking existing underground utilities. After the cable had been installed and CSI had resurfaced the roadway, plaintiff allegedly tripped and fell in the street in front of her driveway while walking her dog. While claiming she tripped on a test pit, she only presented evidence of general road conditions along unspecified portions of the street before the resurfacing at least eight days earlier. Plaintiff never produced any photographs of the alleged "dip" even though claiming it was still present nine months after she brought suit. Her only evidence of any road defect was her own self-serving testimony about tripping on a backfilled test pit, despite conceding that no test pit was dug in front of her driveway where she fell. She concededly could not say which foot stepped in the "dip," did not know where in the street she had fallen and never looked down to see any alleged "dip". 2 Nonetheless, this case somehow has been transformed into one with plaintiff accusing defense counsel of unethical conduct for bribing a defense witness. In particular, Dr. Barry Krosser, an orthopedic surgeon who treated plaintiff at the hospital, testified verbatim from his records that she had told him she "tripped over a dog" (R. 1230). Plaintiff never told Dr. Krosser or anyone else that she tripped in the excavation. Yet, in order to generate a discrepancy with his unremarkable testimony, she represents to this Court that she did so and that Dr. Krosser wrote it down wrong. She then predicates her appeal on this self-created discrepancy and absurdly claims that Dr. Krosser was bribed to read verbatim from his records. Commensurate with his professional rates, CST paid Dr. Krosser $10,000 for his afternoon away from his surgical practice. As a threshold matter, plaintiff's appeal should be dismissed because she failed to preserve for this Court's review her claim that Dr. Krosser's testimony should have been stricken or the trial court should have delivered a special charge about compensating fact witnesses. In particular, she abandoned her request to strike, only requested a charge regarding the statutory witness fees under CPLR articles 23 and 81, acquiesced to the court's proposed remedy of summation commentary, took no exception to the jury charge as given and otherwise never raised any of the issues she now raises on appeal. Indeed, at 3 trial plaintiff took issue on with the accuracy of Dr. Krosser's note, but shifted gears on appeal by taking issue with his testimony. In any event, none of the dangers of bribery, subornation of perjury or other horribles addressed in the inapposite cases plaintiff relies upon exist here. Furthermore, plaintiff's proposed per se exclusionary rule for fact witnesses compensated above the statutory rate is unworkable and bad policy. Such a rule would create the perverse result where witnesses traveling 400 miles still within New York and thus amenable to process would be entitled to only $15 a day plus mileage, but witnesses travelling 30 miles from New Jersey and not amenable to process can be ful1y compensated for their time. The Appellate Division nonetheless indulged plaintiff'S meritless argument, and pronounced a rule that it then held irrelevant to the outcome of this case. Specifically, the Court found that the "suspect credibility of factual testimony by a paid witness" requires a special jury instruction, while simultaneously holding there was nothing suspect about Dr. Krosser's testimony to necessitate such an instruction, 86 A.D.3d at 48, 56-57. Because the Appellate Division found the new general rule it announced inapplicable on these facts that fully supported the verdict and upon which there was no reversal or modification, and its conclusion is beyond this Court's review power. In any event, the Appellate Division ultimately reached the correct result by affirming. 4 Accordingly, plaintiffs appeal should be dismissed or the Opinion & Order affirming the judgment dismissing the complaint should be affirmed. COUNTERSTATEMENT OF FACTS While plaintiff presents a "Statement of Facts" (Plaintiff s Brief at 7-19), it onlits many key facts and details important to the disposition of this appeal - including dispositive procedural issues she does not address - and only loosely describes the background. It is also replete with regular attorney commentary that takes great liberties with the record. For this reason, CSI presents the factual background below. A. The Road Project Cablevision 1 contracted with the City of Peekskill to install an underground fiber optic cable running from a radio tower at one end of Benefield Boulevard to a utility pole at the other end for enhanced 911 service in Westchester County (R. 832, 887-889, 947, 1260). Cablevision subcontracted the work to CSI (R. 926-927, 1454-1549). To install the cable, CSI cut a two-foot deep trench four to five inches wide, extending more than 3,000 feet down the length of Benefield Boulevard (R. 914, 947-948, 952, 1260-1262). To avoid striking existing underground 1 Cablevision was granted summary judgment dismissing the complaint against it prior to triaL 5 utility lines, the trenching included manually digging 1-foot-by-1.5-foot "test pits" in the road at intervals along the trench's route where various utilities had marked the ground to indicate where existing lines were buried (R. 919-920, 940-941, 1261-1262, 1266-1267, 1269). Because the excavation was no deeper than two feet, test pits were not dug for water or sewer lines, which are below the frost line more than four feet underground (R. 914, 948, 1263, 1266). Contrary to plaintiffs generalization that "[t]he project began around September 1, 2006 and finished at the end of October 2006" (Plaintiffs Brief at 7 -8), the project was divided into smaller, discrete phases. The first phase entailed trenching, laying the cable, backfilling the trench and applying temporary resurfacing material at issue here (R. 955-957, 1302-1303); binding, milling, and repaving the roadway \vere to occur in subsequent phases (R. 956, 1267-1268). It was unrefuted that CSI commenced the first phase in August 2006 and completed it by October 3, 2006, resurfacing the back filled trench with temporary asphalt, or cold patch (R. 957-958, 1267-1268, 1302-1303, 1558). Cablevision construction supervisor John Salloum inspected the cold patch along the length of the trench and approved the work (R. 958-959). Plaintiffs accident occurred on October 11, 2006, eight days after the roadway had been 6 fully restored with cold patch and before the second phase began on October 16 or 17 (R. 957,1584.1-1584.59). B. There Was No Test Pit In Front Of Plaintiff's Driveway Peekskill Department of City Services general foreman Howard Wessels, CSI owner Ken Stabler and Salloum each testified that before trenching occurs, utility companies mark the ground in different colors over the locations of their buried lines, and that blue indicates water lines (R. 919-920, 940-941, 1262- 1263, 1266-1267). Only a blue marking, indicating a water line, was in front of plaintiff's driveway where she testified she fell (R. 1274, 1561). Water and sewer lines must be buried at least forty-two inches deep, below the frost line (R. 914, 1263). Stabler explained that test pits are only dug "'if there's any utilities that might be in the way of our trench, that's where we put a test pit" (R. 1267). Stabler explained, however, that no test pits were dug for water lines because "that's buried four feet deep or deeper. And we're only going 24 inches" (R.1266, 1275-1276, 1285). The nearest utility line to plaintiffs house for which a test pit was dug was a gas line located several feet to the left o/her driveway (R. 1270-1272, 1274). 7 C. The Alleged Accident At 10:00 p.m. on October 11, 2006, plaintiff took her 100-lb. Akita for a walk, restraining the dog on a non-retractable leash in a very heavy rain (R. 1086, 1165). She walked her dog every night at 10:00 p.m. and was very specific as to the route she took, including that night (R. 1087-1088, 1162- 1163). From her driveway, she crossed Benefield Boulevard striding over the narrow ribbon of temporary asphalt (R. 1088, 1163, 1165-1166, 1171-1172). She walked along the opposite side of the street before returning to a point directly across the street from her driveway where she crossed back over the street to her home (R. 1088-1098, 1163, 1172-1173). On this night while crossing back over Benefield Boulevard directly in front of the middle of her driveway, she fell (R. 1094, 1173-1174, 1177). Plaintiff admitted that as she was crossing the street, returning home, she was staring straight ahead at her garage and was not watching the ground in front of her where she was stepping (R. 1177). Although she alleged tripping on a "dip" where a test pit had been dug (R. 1094-1095), she concededly could not say which foot stepped in the 4;.dip," did not know where in the street she had fallen and never looked down to see where the alleged "dip" was located (R. 1179-1181). Incredibly, plaintiff nonetheless claimed that while crossing the street directly in front of her driveway (where no test pit had been dug) she 8 tripped on a test pit (R. 1179-1181). Indeed, she acknowledged that the nearest test pit was "a test pit for gas was dug several feet to the left of [her] driveway" (Plaintiffs Brief at 8). The plaintiff also asserts that she told neighbors who came to her aid and her husband that she tripped in the excavation (Plaintiffs Opening Brief at 3). This is likewise flatly belied by the record. Her neighbors, husband and plaintiff herself each testified that she told them that she tripped "in the street" only, without mentioning the excavation, test pit, trench, any sort of dip or road work or road conditions in any fashion (R. 1073, 1078, 1096, 1098, 1193-1194, 1204- 1207). She never subsequently identified the "dip" that allegedly caused her fall (R. 1181, 1207). And, although she claimed at her deposition nine months later that the dip was then still present, she never produced any photographs of the dip or of the specific location or condition that allegedly caused her accident (R. 1185-1189).2 D. The Condition Of The Road Plaintiff offered no further evidence of the condition of the roadway when and where the accident occurred. While she asserts that rain washed backfill from the unpatched trench (Plaintiffs Brief at 9), this is misleading. She only 2 Photographs depicting resurfaced test pits were received in evidence at trial for the limited purpose of demonstrating what a test pit looked like (R. 942-943, 1558-(559) and the distance between plaintiff's house and the house of a neighbor who testified (R. 1028-1030, (560). 9 presented to the jury and describes to this Court evidence of general road conditions during the first phase prior to October 3rd. By then, however, the roadway had been resurfaced with temporary asphalt and her accident did not occur until eight days later (R-957-959, 1083). Specifically, Wessels (from Peekskill) testified that while the first phase was ongoing, the trench was "slightly depressed" and there were stones on the roadway before temporary asphalt was applied (R. 893). He had no idea of the condition of the roadway in front of plaintifrs home or the state of any temporary patch when plaintiff tripped eight days after the first phase was completed (R. 919). Indeed, without objection from plaintiff, the trial court instructed the jury that Wessels' testimony referred to the project in its entirety and he was unable "to reflect upon the condition that existed at the location where this incident is said to have happened" (R. 1439). Further contrary to plaintiff's representation (Plaintiff's Brief at 10-11), Wessels received only a single complaint about the work (R. 901-903, 917-918,1452-1453). Alan Michitsch, the individual who complained to Wessels, was a Benefield Boulevard resident (R. 902-902, 1008-1009). Michitsch had complained to Peekskill about "the whole job that was going on at the time [of September and October 2006] on Benefield Boulevard" (R. 1009). He testified that "at first when they dug the trenches" at the outset of the job in September 10 2006 rain washed dirt from it (R. 1006, 1009-1012 [emphasis added]). He subsequently wrote a letter to Peekskill on October 3, 2006 complaining that the trenching project resulted in "rocks everywhere" and "metal plates sticking up" (R. 1452-1453). Michitsch acknowledged, however, that his complaints were of conditions prior to October 3, 2006 when the first phase of the project was completed (R. 1027), and he agreed that the trench had been covered with cold patch by then (R. 1013, 1017-1018, 1027-1028, 1558). Moreover, Michitsch (a) lived further south on Benefield Boulevard than plaintiff, (b) only inspected the work 4'[i]n front of my house" and (c) had no knowledge as to conditions in front of plaintiffs home either while work was occurring or on the date of her accident when temporary asphalt was in place (R. 1023-1026). Notably, the only complaints Cablevision received were of noise, traffic and construction in a residential area (R. 928-931). There were no problems with the work, which was performed correctly and he approved after inspecting it on October 3, 2006 (R. 949, 957-959). Significant1y, and consistent with Michitsch's and Wessels' testimony, plaintiff cross-examined CSI's Stabler regarding an alleged lack of backfill only in September 2006. This was before the first phase was completed and the temporary asphalt was placed at least eight days before plaintiff s accident (R. 1292-1293). 11 The above is the entirety of evidence upon which plaintiff s case rested. The jury's subsequent defense verdict was not only of no surprise, it should have been expected. E. Dr. Krosser's Testimony Despite plaintiff's complete failure to identify or adduce any evidence of the alleged defect on which she claimed to have tripped, the trial court denied CSI's motion for a directed verdict at the close of her case (R. 1309-1315). CSI then called as a witness Dr. Barry Krosser, an orthopedic surgeon who had treated plaintiff at the Hudson Valley Hospital emergency room within ten hours after her accident. Plaintiff was admitted to the hospital at 10:55 p.m. on the night of her accident. A. nursing assessment by Nurse McConville stated CR. 1584): Current reason for hospitalization (in patient's own words) pt tripped and fell outside while walking dog injuring her left knee, swelling noted Just over three hours later, at 2:05 a.m. plaintiff was seen by internist Dr. Jennifer Greco who similarly recorded in a note (R. 1572): The patient is a 53 year old healthy female who sustained a fracture to her left tibia and fibula. The fracture was sustained while she was walking her dog and tripped. Contrary to plaintiffs assertions (Plaintiffs Opening Brief at 3), she never told Nurse McConville or Dr. Greco that she had tripped in an excavation. 12 Neither Nurse McConville nor Dr. Greco testified and plaintiff never testified as to any conversations with either of them. Rather, these entries contain the only evidence of what she told them. Later that morning, plaintiff was seen at the hospital by Dr. Krosser, the orthopedist on call (R. 1224, 1570). Consistent with the histories previously recorded about tripping and without mentioning any road excavation, Dr. Krosser recorded contemporaneous with his treatment other (R. 1225, 1570): History: This is a 53-year-old female who tripped over a dog while walking last night in the rain. At trial Dr. Krosser testified that he was "familiar" with plaintiff from having treated ber in the emergency room and briefly explained his routine for taking a history from patients such as plaintiff (R. 1222-1226). He then referred to her medical chart to answer further questions posed to him, whereupon plaintiffs counsel conducted voir dire (R. 1227-1229). Upon voir dire in the presence of the jury, Dr. Krosser acknowledged that his testimony was not from personal recollection, but from his notes (R. 1228-1229): Q. With regard to your testimony here, is it fair to say you're testifying not from your personal recollection but only from your notes? A. Yeah. Which is - yes. 13 Immediately following the brief voir dire Dr. Krosser testified, verbatim from his consultation note, "She gave me a history that she 'tripped over a dog while walking last night in the rain'" (R. 1230), Dr. Krosser frequently testifies for which he charges for his time. He did so here consistent with his practice, charging $10,000 to compensate him "[flor [his] time" in coming to testify, as he is "usually seeing patients or operating" (R. 1240, 1243, 1245, 1251-1252). Regardless of any payment, his testimony would be the same as "[he]' d be testifying to [his] records", which were generated contemporaneously with the treatment he rendered to plaintiff within ten hours after her accident (R. 1225, 1235-1236, 1253). He agreed, however, that it was "'theoretically possible" to have written the history wrong (R. 1243). Notably, although the court imposed no limitations, plaintiff never cross- examined Dr. Krosser on his income, hourly rate, office, treatment or surgical schedule, disruption in his practice, or explored any similar issues surrounding his testifying in court. Plaintiff moved to strike Dr. Krosser's entire testimony or for a curative instruction "'dealing with monetary influence" (R. 1255). She argued Hit's illegal, against the law to offer compensation to a nonparty witness for their testimony in court. It is proper to pay them their $15 subpoena fee" (R. 1255). The next morning, CSI provided a memorandum of law refuting plaintiffs 14 position (R. 1325). Plaintiff renewed her request for a jury charge only, specifically linlited to instructing as a subpoenaed witness, Dr. Krosser was entitled by statute to only $15 per day plus 23 cents per mile (R. 1317-1318). The court denied the motion, but proposed allowing the parties to comment in summations on Dr. Krosser's compensation, to which plaintiff agreed, stating "Okay" (R. 1320-1321). Although asked following the court's jury instructions whether she had "any exceptions to the charge", plaintiff responded "No" (R. 1424). Plaintiff never raised the issue again until appeal. Indeed in her summation, plaintiff took no issue whatsoever with Dr. Krosser's testimony or credibility_ Rather, she questioned the accuracy of his note only (R. 1385-1386). F _ Deliberations And Verdict During deliberations, the jury requested Dr. Krosser's consultation note that was in evidence (R. 1427), but never requested a read back of his testimony that plaintiff claims was so significant. The jury also requested (a) all photographs in evidence (R. 1427); (b) Michitsch's letter conlplaining of conditions prior to October 3, 2006 (R. 1427-1430); (c) the Peekskil1 City Code regarding roadway resurfacing (R. 1427-1431, 1433-1435); (d) a read back of the testimony of plaintiffs neighbors Raul and Maribel Mercado (who each testified that plaintiff told them she fell in the street without mentioning any 15 excavation, test pits, road work or road conditions) (R. 1427-1431); and (e) twice requested a read back of plaintiff's testimony describing her fall, including the route she took that would not have crossed any test pit (R. 1431-1434; 1437- 1440). Presented only with complaints of general road conditions pflor to completion of the first phase of the project, the jury found that CSI was negligent, but that its negligence was not a substantial factor in causing plaintiffs injury (R. 1587-1589). The court denied plaintiffs CPLR 4404 post- trial motion to set aside the verdict (R. 6-7, 1697-1607) and entered a judgment of dismissal, from which plaintiff appealed to the Appellate Division (R. 9-13). G. The Appellate Division's Decision By Opinion & Order entered May 31, 2011 (86 A.D.3d 46), the Appellate Division, Second Department rejected plaintiffs contention that exclusion of Dr. Krosser's testimony was warranted (R. 3a-13a). Thus, the Court affirmed the judgment of dismissal, but pronounced a rule requiring in certain circumstances jury instructions regarding paid fact witnesses -- a rule ultimately irrelevant to the outcome in the case. Specifically, the Court first rejected plaintiffs contention that a fact witness' compensation for lost time is limited to the meager statutory fee of $15 per day plus 23 cents per mile set required by CPLR 8001. The Court 16 explained: "The plain language of the statute mandates payment of fees set forth therein, but does not expressly prohibit voluntary payments made in excess of that fee schedule" (86 A.D.3d at 50). Abstractly discussing paid fact witness testimony, the Appellate Division next recognized no impropriety in compensating fact witnesses for the reasonable value of their time (86 A.D.3d at 50-52). The Court then correctly observed that this case was neither an attorney disciplinary matter nor one seeking to enforce an agreement between litigant and witness, such as those relied on by plaintiff. Thus, the Court rejected pLaintiff's claim that excluding Dr. Krosser's testimony was warranted (86 A.D.3d at 54). Rather, the Court concluded (86 A.D.3d at 55 [citations omitted]): [T]he appropriate remedy in a case such as this one, where one might reasonably infer that a fact witness has been paid a fee for testifying, is to permit opposing counsel to fully explore the matter of compensation on cross-examination and summation, and to leave it for a properly instructed jury to consider whether the payment made to the witness was, in fact, disproportionate to the reasonable value of the witness's lost time and, if so, what effect, if any, that payment had on the witness's credibility. In this case, the Supreme Court properly allowed the plaintiffs' counsel to cross-examine Dr. Krosser without limitation regarding the $10,000 payment that was made to him, and also properly pemlitted counsel to adequately address the issue in summations. Although plaintiff had only requested a jury instruction regarding the statutory witness fee, which the Court held was not the proper standard and 17 plaintiff never objected to the charge given, the Court nevertheless held (86 A.D.3d at 55-56 [citations omitted]): The Supreme Court erred; however, in denying the plaintiffs' request for an explicit instruction to the jury regarding witness compensation. * * * * [W]e conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create. The Court then concluded, however, that the trial court's error in failing to glve an explicit instruction regarding the ··suspect credibility of factual testimony by a paid witness" (86 A.D.3d at 48) was harmless where there was nothing suspect about Dr. Krosser's testimony quoting verbatim from a record in evidence (86 A.D.3d at 56-57 [citation omitted]): Although the trial court here failed to give a specific instruction regarding fact-witness compensation to the jury, under the 18 particular circumstances of this case, the charge error does not require reversal. Dr. Krosser was called as a witness by the defendant for the sole purpose of testifying as to a single fact recorded in his medical notes. Dr. Krosser admitted that he had no personal recollection of speaking with the plaintiff and that his testimony was based only on what was written in his note. The jury's evaluation of this testimony was, therefore, only minimally dependent upon an assessment of Dr. Krosser's credibility. In other words, the plaintiffs do not challenge the believability of Dr. Krosser's testimony that he made a particular notation in the injured plaintiff's medical chart. Rather, they dispute the accuracy of the note itself. Because the payment of fees to a fact witness goes merely to the credibility of the witness, in view of the nature of Dr. Krosser's testimony, the charge error here was not so prejudicial as to warrant reversal and a new trial. This Court granted plaintiff leave to appeal from the Appellate Division Opinion & Order (R. 2a). H. Plaintiff's Disingenuous Argument On AppeaJ Distilied to its essence, plaintiff argues that Dr. Krosser was bribed $10,000 to testify. Despite that his testimony involved merely quoting verbatim from plaintiff's medical record in evidence, she ventures that the payment rendered his testimony suspect. Plaintiff's attempt to assign any significance to Dr. Krosser's testimony, however, is premised solely on a factual misrepresentation of the record. In particular, plaintiff asserts that she told (a) neighbors who came to her aid, (b) Nurse McConville who assessed her at the emergency room and (c) Drs. 19 Greco and Krosser who examined her in the emergency room that she had tripped in the excavation, but that only Dr. Krosser got it wrong (Plaintiff's Brief at 3). Only by representing - falsely - that she told these individuals she tripped in the excavation can plaintiff then claim a discrepancy with Dr. Krosser's testimony. She then attacks this purported discrepancy as the sole basis for her appeal because he was compensated for his time away from his practice to testify. There is no foundation for this argument. According to her own testimony and that of her neighbors and husband, plaintiff stated only that she had tripped "in the street," never mentioning or pointing out the excavation, test pit, trench, any sort of dip or road work or road conditions in any fashion (R. 1096-1098, 1181-1182). Maribel Mercado, plaintiff's neighbor who came to her aid, similarly testified that plaintiff only indicated that she "'fell" and "she pointed to the street", without blaming any excavation, test pit, trench, or road work (R. 1073). On voir dire outside the presence of the jury Maribel Mercado was even more explicit that plaintiff never told her how she fell (R. 1047). Maribel Mercado's husband Raul, who arrived with his wife, sinlilarly testified that plaintiff stated only that she "fell" in an unspecified spot in the street and "dragged [herself] from the street on to the edge of the driveway" (R. 20 1078). On voir dire outside the presence of the jury Raul Mercado was even more explicit that he never discussed the accident with plaintiff and does not know how it occurred (R. 1054). Plaintiff's husband also acknowledged that she never specified over what she tripped (R. 1204-1207). Although he initially testified to the contrary (R. 1198), when confronted with his EBT (R. 1204-1207), he conceded that plaintiff "never pointed out what she tripped on" (R. 1207). As detailed above, plaintiff also never told any of her treaters at the hospital that she tripped in the excavation. In fact, Nurse McConville and Dr. Greco never testified. Their notes - which plaintiff claims are correct - received in evidence are devoid of any statements even remotely suggesting she told them she fell in the excavation (R. 1570, 1572, 1584). The record is clear that plaintiff never represented to any of these individuals that she fell in the excavation. In fact, any such testimony would necessari1y have been excluded as impermissible hearsay. See People v. McClean, 69 N.Y.2d 426,428 (1987). Yet, in order to generate a discrepancy with Dr. Krosser's unremarkable testimony repeating the contents of a record in evidence, plaintiff misrepresents that she informed her neighbors, husband and treaters that she tripped in the excavation, but that Dr. Krosser incorrectly wrote that she tripped over a dog. 21 She then predicates her appeal on this fabricated factual discrepancy, presenting this case as a conflict between her misrepresentation and Dr. Krosser's testimony. Moreover, plaintiff cannot get around that Dr. Krosser merely quoted from a record in evidence. Even with this factual misrepresentation upon which the conflict she present is based, her appeal is simply the improbable claims that Dr. Krosser was bribed to quote verbatim from his consultation note, for which she is entitled to a new trial. The Appellate Division correctly recognized that this claim is meritless and that no corrective action was warranted regarding Dr. Krosser's innocuous testimony or the verdict reached by the jury. Before reaching this correct conclusion, the Appellate Division nonetheless indulged plaintiffs unpreserved and meritless arguments and pronounced a general rule that, in certain circumstances, a jury should be instructed regarding disproportionate payment of a fact witness. That finding, however, was irrelevant to the outcome of the case used to pronounce the rule. Contrary to plaintiffs contention, there is nothing novel about calling a treating physician as a fact witness and paying that witness for his or her time commensurate with professional rates, which parties routinely do. 22 For the reasons that follow, and regardless of whether this Court agrees with the Appellate Division's rule, the appeal should be dismissed or the Opinion & Order should be affirmed. ARGUMENT POINT I PLAINTIFF FAILED TO PRESERVE FOR APPELLA TE REVIEW THE TRIAL COURT'S ALLEGED ERROR IN NOT STRIKING DR. KROSSER'S TESTIMONY OR GIVING A SPECIFIC JURy INSTRUCTION REGARDING FACTUAL TESTIMONY BY A PAID WITNESS A. Applicable Standard It is well settJed that the Court of Appeals' jurisdiction is confined to reviewing issues of law, Hunt v. Bankers & Shippers Ins. Co. of N.Y., 50 N.Y.2d 938 (1980), and that "unpreserved issues are not issues of law." Matter of K.tltan v. l'Je\v York State Dept. of Health, 96 N.Y.2d 879, 880 (2001). Pursuant to CPLR 411 O-b: No party may assign as error * * * the fai1ure to give an instruction unJess he objects thereto before the jury retires to consider its verdict stating the matter to which be objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. To preserve a charge error issue for Court of Appeals review, therefore, a party must register a timely and sufficient objection. Suria v. Shiffman, 67 N.Y.2d 87, 97 (1986) ("Absent a proper request for the interrogatory[,] the 23 omission of which is now claimed to be error, no question of law is presented for our review."). Indeed, "[w]hile the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the Court of Appeals may not address such issues in the absence of objection in the trial court." Merrill v Albany Med. etr. Hosp., 71 N.Y.2d 990,991 (1988). B. Plaintiff Abandoned Her Request To Strike, Agreed With The Relief Fashioned By The Court And Took No Exception To The Charge Here, plaintiff failed to preserve for this Court's review the issues she now raises on appeal. In particular, after Dr. Krosser testified, plaintiff moved to strike his entire testimony or for a curative instruction "dealing with monetary influence" (R. 1255). Plaintiff argued (R. 1255): First and foremost, last time I checked I believe it's il1egal, against the law to offer compensation to a nonparty witness for their testimony in court. I t is proper to pay them their $ I 5 subpoena fee, and to subpoena them for their appearance. However, when they're not being called for expert testimony I believe it's improper to pay them to show up and I think at a minimum we should have a curative instruction to the jury or some portion of the charge dealing with monetary influence. I think it rings of impropriety. CSI opposed the request and the trial court allowed plaintiff until the next day to "supply the Court with legal basis for making that accusation", at which time it would rule (R. 1256-1258). 24 The next morning, CSI provided a memorandum of law refuting plaintiffs position (R. 1325), but she had only reviewed select statutes on subpoenas and witness fees (R. 1317-1318). Plaintiff then renewed her request for only a jury instruction based on the subpoena fees provisions of CPLR 8001 and 2303 (R. 1317-1318): In furtherance of yesterday's testimony wherein the non- party witness, Doctor Krosser came in and testified he had been paid $10,000 to show up as a fact witness, I did a little research, and as you'1I recall, that witness was issued a judicial subpoena which was signed by the Court. He admitted he was testifying in response to that subpoena, and I looked up CPLR 2308A which governs subpoenas issued by judges. I also looked up Section 2303 which governs service of subpoena and payment of fees in advance. Now that statute requires that any person subpoenaed shall be paid in advance, authorized traveling expenses and one day's witness fee. Now that is statutorily governed by CPLR 8001 A. * * * * * * * Witness fee is $15 for each day's attendance and 23 cents per mile to and from the place served with the subpoena. So based on these statutes and because he received a judicia] subpoena that witness is supposed to be here for $15 and $0.23 a mile, whether he wanted to be here or not. So because of that I wouJd ask the jury be instructed that he was required to be here and the statutory witness fee is $15 plus 23 cents a mile and let them do with it what they wilL 25 CSI then explained that "[t]he statutory witness fee is a minimum. It is not a maximum. There is no prohibition to paying a witness, whether expert or fact, his salary for the day. * * * The doctor came in in his professional capacity as an orthopedic surgeon during the course of his employment as an orthopedic surgeon" (R. 1319). The trial court then proposed a solution: "Suppose we handle it this way. Rather than my addressing it in the way of a charge, why don't I allow counsel for both sides to address it in their summations?" (R. 1320). Clarifying that the parties may not comment on the statutes themselves, the court explained (R. 1321 ): It's understood and I hope everybody is on the same page with me, no mention can be made of the law per se, to talk about the facts of the case. If you want to talk and say that he came into the Court and received a $10,000 payment to testify and he didn't propound an opinion, they could make of it as they wish. Anything that comes in under the concept of fair comment you can address. If anybody transgresses or starts talking about the statutory requirements and such, they're going to hear from me in a hurry. To this solution, plaintiff acquiesced, stating "Okay" (R. 1321). Then following its jury instructions, the court specifically inquired of each side: "Are there any exceptions to the charge", to which plaintiff specifically responded "No" (R. 1424). 26 C. Plaintiff Waived Her Appellate Contentions Under these circumstances, plaintiff failed to preserve her appellate contentions. For example, in Feinberg v. Saks & Co., 56 N.Y.2d 206 (1982), this Court found that plaintiffs failure to make a timely objection precluded review of the issue on appeal, even though the Appellate Division addressed the unpreserved issue. Similarly, in Suria v. Shiffinan, supra, this Court found no issue of law for its review where "the only protest registered to the court's special interrogatory was [] counsel's postcharge exception 'to the comparative negligence charge to the extent the offense of this case proceeded in 1975 and more properly fell into the control of the contributory negligence rule. '" 67 N. Y.2d at 96-97. This Court noted that "[a ]bsent a proper request for the interrogatory the omission of which is now claimed to be error, no question of law is presented for our review." rd. Nor is one presented on this appeal. First, while she initially sought to strike Dr. Krosser's testimony (R. 1255), she later abandoned this request. In particular, upon returning the next morning after the court allowed her to research the issue, plaintiff limited her requested relief to only a curative instruction 4Iothat he was required to be here and the statutory witness fee is $15 plus 23 cents a mile and let them do with it what they will" (R. 1318). 27 Second, when the court denied the request, plaintiff expressly acquiesced to the court's proposed solution of allowing her to comment in summation on Dr. Krosser's $10,000 payment. At that point, plaintiff could have objected or even renewed her motion to strike, but instead agreed with the relief fashioned by the trial court. Third, and significantly, plaintiff took no exception to the charge as required under CPLR 4110-b. Following its jury instruction, the court specifically inquired whether plaintiff had an exception, but she specifically replied "No" (R. 1424), again consenting to the agreed-upon remedy. The next time plaintiff raised the issue was on appeal. She even failed to lodge any complaint about Dr. Krosser in her post-trial motion (R. 1597-1607). Indeed, in seeking a new tria! on liability plaintiff blamed the verdict on an "irreconcilably inconsistency" and a 'jury compromise" not as she does now solely on Dr. Krosser 's testimony (R. 1601-1607), Dr. Krosser was never even mentioned in her post-tria] motion. Now, however, in plaintiff's view, Dr. Krosser was the driving force behind the defense verdict. Lastly, never during trial did plaintiff advance the prolix arguments she advances on appeal - replete with discussions of inapposite non-controlling treatises and decisional law. Rather, her arguments were terse and grounded solely in her interpretation of CPLR Articles 23 and 80. Those interpretations, 28 however, were misguided and easily dispensed with for the simple reason that those provisions dictate merely what fees must be paid and can be taxed (see Point IV infra). They in no way limit reasonable compensation for witnesses pursuant to their professional rates for time away from their practice. Accordingly, this Court should dismiss plaintiffs appeal as she failed to preserve any issue of law for this Court's review. POINT II THE APPELLA TE DIVISION CORRECTL Y CONCLUDED THAT, IN LIGHT OF THE LIMITED NATURE OF DR. KROSSER'S TESTIMONY, THE TRIAL COURT'S ALLEGED ERROR IN FAILING TO GIVE A SPECIFIC CHARGE REGARDING FACTUAL TESTIMONY BY A PAID WITNESS WAS A T MOST HARMLESS ERROR THAT DID NOT MA TERIALL Y AFFECT THE OUTCOME OF THE TRIAL. IN ADDITION, THE ULTIMATE [SSUE ON APPEAL IS UNREVIEWABLE BY THTS COURT UNDER THESE CIRCUMSTANCES. A. The Correct Harmless Error Standard CPLR 2002 codifies the harmless error doctrine. The provision states: An error in a ruling of the court shal1 be disregarded if a substantial right of a party is not prejudiced. The test for determining whether a substantial right of a party is prejudiced is not, as plaintiff represents, whether the error "possibly" effected the outcome (Plaintiff's Brief at 50-51). Rather, the standard centers on whether the error "probably" would have had a "substantial influence" in producing a different result. Walker v. State of New York, 111 A.D.2d 164, 165 (2d Dep't 1985); 29 Alexander, Practice Commentaries, CPLR 2002; Barbagallo v. Americana Corp., 25 N.Y.2d 655,656 (1969); Fishman v. Scheuer, 39 N.Y.2d 502 (1976) ("in view of the quibbling nature of the 'inconsistency' at the heart of the issue, the error does not require reversal" where prior consistent statement erroneously admitted in rebuttal). Courts have generally applied one of two separate tests for determining harmless error. First, under the residual evidence test, when an appellate court determines that an error has occurred, it will nevertheless affirm where the residual evidence was sufficiently strong to result in the outcome reached by the JUry. Under the second test, an error is harmless only if there exists no reasonable possibility that the error might have contributed to the jury's determination. 1. New York Courts Apply The Residual Evidence Analysis In non-constitutional, harmless error analysis under New York jurisprUdence, this Court has rejected the second test, criticizing it as "perhaps the most demanding yet formulated". People v. Crimmins, 36 N.Y.2d 230, 241 (1975), citing Fahy v. Connecticut, 375 U.S. 85, 86 (1963) and Chapman v. California, 386 U.S. 18 (1967). Nevertheless, in criminal cases where a defendant's liberty is at stake, this Court has adopted a more stringent standard 30 than the residual evidence test, additionally inquiring whether "there is a significant probability, rather than only a rational possibility" that the outcome would have been different had it not been for the error. People v. Crimmins, supra at 242. In civil cases, however, the courts of this state apply the residual evidence analysis in determining whether an error prejudices the complaining party. See ~,Flynn v. Manhattan and Bronx Surface Tr. Operating Auth., 61 N.Y.2d 769 (1984); Khan v. Galvin, 206 A.D.2d 776, 778 (3d Oep't 1994); Nappi v. Gerdts, 103 A.D.2d 737, 737 (2d Oep't 1994); Walker v. State, supra at 165-166. Flynn provides the paradigm. Flynn involved a collision between a bus and a bicycHst, which the jury resolved in favor of the plaintiff bicyclist. See Flynn v. Manhattan and Bronx Surface Tr. Operating Auth., supra at 155-156. The Court of Appeals agreed with the defendant that the trial judge had erroneously received in evidence testimony of the investigating officer that the bus driver told him at the scene that an unidentified passenger had informed the driver that he had struck a bicyclist. See id. at 156. Surveying the overwhelming evidence that the bus driver had struck the bicyclist, however, this Court held that the error was harmless. 31 Specifically, the Court observed that a collision between the bus and bicycle was never disputed and that the plaintiff's excited utterance, the officer's memo book and a note by another passenger that was admitted as a prior consistent statement were all properly received into evidence from which the jury could conclude that the bus struck the plaintiff. See id. Thus, notwithstanding the error in admitting the officer's double hearsay testimony, this Court applied the residual evidence analysis to determine harmlessness. Upon considering the strength of the residual evidence this Court concluded that the error was harmless, id. (emphasis added): We conclude, however, in view of the other evidence properly before the jury that the admission of this evidence was harmless and not of sufficient significance to warrant reversal. See Judson v. Fielding, 253 N.Y. 596 (1930), afring 227 App. Div. 430, 433 (3d Dep't 1929) ("Errors of that nature frequently occur during the trial of actions and on appeal are often disregarded because they affect no substantial right of a party; or because the case is so clearly established that the error is deemed harmless. [t is only in cases like this where so much doubt surrounds the facts that courts will grant a new trial on what may seem to be technical errors"); Khan v. Galvin, supra at 778 ("Defendant contends that with the evidence of skidding, the jury could easily have credited her version of the accident, but considering all of the evidence in the record we find defendant's 32 contention to be pure speculation and insufficient to demonstrate the requisite prejudice"); Nappi v. Gerdts, supra at 737 ("We nevertheless conclude that in view of the other evidence properly before the trier of fact, this error was harmless and, therefore, not of sufficient magnitude to warrant reversal"); Walker v. State, supra at 165-166 ("Considering the other evidence presented on this issue, and the tentative nature of the diagnosis contained in the report, which at best was cumulative, it is highly unlikely that the result would have been changed by the admission of the report"). 2. Admission Of Cumulative Evidence Of Which Plaintiff Cannot Show Any Preiudice Is Harmless Flynn illustrates another facet of this Court's harmless error analysis that is significant with regard to the instant case. Regardless of which test is applied, an error is harmless where the evidence complained of is merely cumulative of evidence already submitted. Such is the case here, where plaintiff complains only of Dr. Krosser's testimony repeating verbatim from a record in evidence. Specifically, in Flynn, the officer's erroneously admitted double hearsay statement that the driver had struck a bicyclist was merely cumulative of the residual evidence reviewed by the Court in determining that the error was harmless. See also A.R. Fuels, Inc. v. City of New York, 63 N.Y.2d 748, 750 (1984) (any error in considering statement submitted after the close of evidence 33 was harmless as the statement was "merely cumulative of the weight of evidence submitted"); Green Island Assoc. v. Lawler, Matusky & Skelly Engrs., 170 A.D.2d 854, 856 (3d Dep't 1991) ("As the substance of this transcript excerpt was merely redundant, and to a great degree had already been independently elicited by defense counsel, we view its erroneous admission to be harmless"); Walker v. State, supra at 165-166 ("Considering the other evidence presented on this issue, and the tentative nature of the diagnosis contained in the report, which at best was cumulative, it is highly unlikely that the result would have been changed by the admission of the report"). Not only was Dr. Krosser's testimony merely cumulative of evidence already adduced - of which plaintiff does not complain - but any error must also be harmless where the complaining party 104identifies no way in which the court's error ... might have tainted the jury's verdict". Adams v. Genie Indus., Inc., 14 N.Y.3d 535, 545 (20 10). Here, the limited nature of plaintiff's cross- examination and summation on this issue, her acquiescence to the court's remedy, her failure to object to the jury charge or raise the issue in her post-trial motion all demonstrates its marginal relevance. Indeed, plaintiff identifies no aspect of Dr. Krosser's testimony that allegedly tainted the verdict -- other than her above-noted manufactured discrepancy. 34 B. The Appellate Division Correctly Found Any Alleged Error Harmless Even assuming that the failure to strike Dr. Krosser's testimony or charge the jury on the bias of paid fact witnesses was error, it had no "substantial influence" in producing a different result. Therefore, any such error was harmless, as the Appellate Division correctly concluded. Viewing the evidence adduced at trial, plaintiff presented an incredibly weak slip and fall case that the jury rightfully rejected, regardless of Dr. Krosser's testimony. 1. The Residual Evidence Overwhelmingly Favored CSI Plaintiff's only evidence of any road defect was her own self-serving testimony that she tripped on a "dip" where a test pit had been backfilled. But, she only presented evidence of genera1 road conditions along unspecified portions of the street before it had been resurfaced at least eight days before her accident. She never produced any photographs of the alleged "dip" even though she claimed it was still present nine months later after she commenced this action. Still further, her unsupported, self-serving testimony was contradicted by the unrefuted record evidence. She acknowledged that she did not know where in the street she had fallen and never looked down to see where in the street the alleged "dip" was located. Moreover, plaintiff admitted that she was directly in 35 front of her driveway when she tripped. But, it was unrefuted, as she concedes on appeal, that the nearest test pit had been dug several feet to left of her driveway, where she admittedly did not cross. These factual issues resolved by the jury against plaintiff and affirmed by the Appellate Division are beyond this Court's power of review. See Soto v. New York City Tr. Auth., 6 N.Y.3d 487, 493 (2006); Keane v. Keane, 8 N.Y.3d 115, 122 (2006); N.Y. Const, art VI § 3. 2. Dr. Krosser's Testimony Did Not Taint The Jury Verdict Plaintiffs sole claim on appeal is that Dr. Krosser's testimony quoting verbatim from a record in evidence "possibly" affected the jury's verdict. Not only must any effect on the outconle be '·probable" and "substantial", rather than simply "possibie", Walker v. State of New York, supra at 165; BarbagaUo v. Americana Corp., supra at 656; Alexander, Practice Cornnlentaries, CPLR 2002., it is clear that the failure to strike the testimony or charge the jury on any bias of Dr. Krosser did not affect the outcome. Specifically, the jury (a) twice requested a read back of plaintiff's testimony how the accident occurred - including her path that did not cross the purported offending test pit (R. 1431-1434; 1437-1440), (b) requested a read back of the testimony of plaintiff s neighbors who each confirmed that plaintiff told them only that she had fallen in the street without mentioning the 36 excavation or roadwork (R. 1427-1431 ), (c) requested all photographs in evidence which did not include any photographs of the allegedly defective condition (R. 1185-1189, 1427) and (d) requested Dr. Krosser's medical record in evidence from which he quoted (R. 1427). The jury never requested a read back of Dr. Krosser's testimony. As noted, at trial plaintiff took issue, not with Dr. Krosser's testimony, but only with his note (R. 1229, 1235), with which she now has no complaint. That note, however, was generated long before this action was commenced and Dr. Krosser explicitly testified, repeatedly, that he was testifying solely from his note (R. 1227-1229, 1241). At trial, plaintiff inquired whether Dr. Krosser's dictation had ever been transcribed incorrectly, whether he had ever recorded a history incorrectly and the care with \vhich he documents patient histories (R. 1229, 1241-1245). Further undermining its significance, Dr. Krosser conceded the possibility, as plaintiff had hoped, that he recorded the history wrong (R. 1243). In summation, plaintiff unambiguously posited that the veracity of Dr. Krosser's testimony depended solely on the accuracy of his note (R. 1385- 1386): So $10,000 is laid out for a man to come in and say there's absolutely no recollection of this patient. He's looking her right in 37 the eye and he doesn't have a light bulb go off at all. He doesn't have any personal recollection of what his notes say. He says that's what the note says, so that must be what it is. He doesn't know if it was taken down accurately_ He has not idea because he has no recollection of the fact. Plaintiff's complete failure to challenge the veracity of Dr. Krosser's testimony on cross-examination and summation confirms its minor relevance. Although plaintiff now complains about this testimony, she points to no possible taint that this testimony may have produced. She implicitly acknowledges that this testimony, which merely quoted verbatim from a record in evidence, was cumulative (Plaintiff's Brief at 55-56). Thus, any error in failing to strike the testimony or instruct the jury on Dr. Krosser's possible bias as a result of being compensated for his time necessarily was harmless. See Flynn v. Manhattan and Bronx Surface Tr. Operating Auth., supra at 155-156; A.R. Fuels, Inc. v. City of New York, supra at 750; Green Island Assoc. v. Lawler, Matusky & Skelly Engrs., supra at 856; Walker v. State, supra at 165-166. Again, it cannot be stressed enough that the purported significance plaintiff assigns to Dr. Krosser's testimony is predicated on a factual misrepresentation. She presents this case as a conflict between her account and Dr. Krosser's account, but this is a false choice. The conflict she presents derives from her claim that she told everybody who came to her aid and who 38 treated her on the night of her accident that she tripped in the excavation, but that Dr. Krosser got the information wrong. As discussed above, however, she never told any of these people that she had tripped in the excavation. Because in reality no conflict exists here between Dr. Krosser and everyone else plaintiff told of her accident, plaintiff "identifies no way in which the court's error ... might have tainted the jury's verdict". Adams v. Genie Indus., Inc., 14 N.Y.3d 535, 545 (2010). Thus, the Appellate Division correctly found any purported error harmless. C. The Issues On Appeal Are Not Reviewable If this Court were to reach the merits, the harmless error reality, as detailed above, would warrant an affirmance. But, under these particular circumstances the Appellate Division's harmless error finding creates an unavoidable reviewability impediment alternately mandating affirmance. 1. The Appellate Division Did Not Reverse Or Modify On New Facts Article VI, § 3(a) of the N.Y. State Constitution and CPLR 5501(b) govern and limit the scope of this Court's review power to issues of law only. Pursuant to these provisions~ however, ~·the Court of Appeals may review questions of fact only where the Appellate Division has reversed or modified a final or interlocutory judgment or order and has made new findings of fact and a 39 new final judgnlent or order 'pursuant thereto' has been entered." Karger, The Powers of the New York Court of Appeals, § 79 (3d ed. 1997). Thus, this Court has no power to review questions of fact where the Appellate Division has affirmed the judgment appealed from. Distilled to its essence, the issue of whether the trial court should have charged the jury about the "reasonableness" of compensating a fact witness such as Dr. Krosser turns on a factual analysis. The Appellate Division, however, did not reverse or modify the judgment appealed from upon new facts, thus limiting this Court's review power to issues of law. Const. Art. VI, § 3(a); CPLR 5501 (b); Karger, The Powers of the New York Court of Appeals, § 97 (3d ed. 1997), But, the ultimate relief necessarily turns on an unreviewable factual analysis. Specifically, after its lengthy observation concerning "suspect credibility of factual testimony by a paid witness'" Caldwell v. Cablevision Sys. Corp., 86 A.D.3d 46, 48 (201 I), the Appellate Division ultimately found any alleged error harmless "under the circumstances of this case." rd. at 48. This harmless error determination was dispositive of the entire case. To reach that determination, however, the Appellate Division, which does possess factual review power, necessarily and specifically engaged in an examination of the facts, Le. ''the circumstances of this case," rd. at 56-57, in order to conclude that Dr. Krosser's 40 testimony had no effect on the outcome of the trial. Absent an Appellate Division modification or reversal on new facts, however, such review powers are beyond this Court's jurisdiction. Hedeman v. Fairbanks, Morse & Co., 286 N.Y. 240 (1941). 2. Mixed Questions Of Law And Fact Permit Only Limited Review In addition, mixed question of fact and law is beyond the review power of the Court of Appeals unless there is no record support for the determinations of the courts below. See Matter of Gissette Angela P ., 80 N .Y.2d 863, 864 (1992); People v. Harrison, 57 N.Y.2d 470, 478-479 (1982); Johnson, Drake & Piper, Inc. v. State of New York, 43 N.Y.2d 677, 678 (1977). To the extent this Court views the Appellate Division's decision as a mixed question of law and fact - whether the charge was warranted on the iaw, but whether ultimately the failure to issue the charge was harmless - the issue is not reviewable. As detailed above, the record overwhelming supported the Appellate Division's finding any error in not charging the jury on the "reasonableness" of a fact witness' compensation was not prejudicial and, thus, did not warrant a new trial. 3. There Was No Abuse Of Discretion As A Matter Of Law Similarly, this Court "has no power to review the wisdom or providence of any such exercise of discretion or to reverse or modify merely because it may 41 disagree therewith." Karger, The Powers of the New York Court of Appeals, § 77 (3d ed. 1997). Only where the exercise of discretion was abused as a matter of law may this Court review it. Id., at § 95; see Patron v. Patron, 40 N.Y.2d 582 (1976). Where a court weighs the appropriate factors in exercising its discretion, no abuse as a matter of law occurs, despite a party's displeasure with the result. See Small v. Lorillard Tobacco Co., Inc. 94 N.Y.2d 43 (1999). Whether plaintiff was entitled to a special instruction or the striking of Dr. Krosser's testimony also presents, under these circumstances, a discretionary issue. See ~ Matter of Leala T., 55 A.D.3d 997, 998 (3d Dep't 2008); Matter of Jason A., 7 A.D.3d 791 (2d Dep't 2004); Davanzo v. Fisher, 304 A.D.2d 452, 453 (1 st Dep't, 2003); Acunto v. Conklin, 260 A.D.2d 787, 790 (3d Dep't 1999); People v. Chin, 67 N.Y.2d 22, 29 (1986); Rivera v. City of New York, 107 A.D.2d 331, 335 (1st Dep't 1985), appeal dismissed 66 N.Y.2d 912 (1985) (not a question of law). Such "4judicial discretion', i.e., a 'discretion' to grant or withhold a remedy prayed for", is subject to Court of Appeals review, "'but only as to whether or not it has been abused and not on the merits." Patron v. Patron, 40 N. Y .2d 582, 584 (1976). Here, under no view of the record can it be said that the appellate or trial court abused its discretion as a matter of law. First, as detailed in Point I, plaintiff ultimately abandoned her request to strike Dr. Krosser's testimony_ In addition, she never requested a special jury 42 instruction on reasonable compensation for a fact witness. She requested only a charge that a fact witness was entitled to no more than the statutorily mandated minimum fees. In addition, plaintiff acquiesced to the court's proposed remedy of allowing summation commentary and expressly had no exception to the charge. Thus, the trial court could not have abused its discretion for not delivering a charge that was never requested and for not striking testimony after the request was abandoned. Second, despite the opportunity to do so, plaintiff presented no legal basis for striking Dr. Krosser's testimony. Rather, her request derived from a flawed analysis of CPLR articles 23 and 80 - as the Appellate Division found (and as detaHed in Point III below). Furthermore, the special jury charge pronounced by the Appellate Division (now embodied in PJI 190.4) did not yet exist. Thus, the trial court could not have abused its discretion as a matter of law for not giving a charge that was not judicially crafted until later. Third, other than eliciting from Dr. Krosser how much he was being compensated for his time (R. 1240, 1244-1245), plaintiff wholly failed to explore before the jury the reasonableness of his compensation. Indeed, although the court imposed no limitations, plaintiff never cross-examined Dr. Krosser on his income, hourly rate, practice, surgical schedule, disruption in his practice, or explored any similar Issues surrounding his testifying in court. 43 Because she adduced no context for the value of his time, a charge on the reasonableness of his fee was unwarranted. If anything, it would have been an abuse of discretion to allow a jury to speculate in a vacuun1 on the issue. Fourth, as detailed above, the evidence overwhelmingly favored CSI and Dr. Krosser's testimony was merely cumulative and of marginal significance. Lastly, plaintiff never challenged the veracity of Dr. Krosser's testimony on cross-examination or summation. Rather, she doubted only the accuracy of his note, of which she now has no complaint. As such, his testimony lacked the importance with which she now imbues it. Under such circumstances, any charge regarding his bias and Hsuspect credibility", would have been misleading and unwarranted. Accordingly, \vhether on the merits or because the issues on appeal are unreviewable, this Court should affirm the Appellate Division's order. POINT III PLAINTIFF'S PROPOSED PER SE EXCLUSIONARY RULE FOR FACT WITNESSES COMPENSATED BEYOND THE STATUTORY FEE IS LEGALLY UNSUPPORTABLE, IMPRACTICABLE AND BAD POLICY. THE APPELLA TE DIVISION CORRECTL Y FOUND THA T THE APPRO P RIA TE REMEDY, WHERE A GENUINE ISSUE OF EXCESSIVE COMPENSA TION EXISTS, IS TO PERMIT OPPOSING COUNSEL TO EXPLORE THE ISSUE ON CROSS-EXAMINATION AND SUMMATION. Even if this Court can overlook the procedural preservation and reviewability impediments, as well as the dispositive harmless error reality, to 44 reach any substantive issues, it must still affirm the Appellate Division order. Plaintiff s proposed per se exclusionary rule for testimony of fact witnesses compensated beyond the statutory fee is legally unsupportable, impracticable and bad policy. The Appellate Division correctly found that the appropriate remedy for a true excessive compensation issue actually warranting a special jury charge is to allow counsel to explore the issue on cross-examination and summation. A. It Is Neither Illegal Nor Unethical To Compensate Fact Witnesses For Their Time Contrary to plaintiff's assertions, compensating Dr. Krosser commensurate with his professional rate for his time away from his practice - "usuaHy seeing patients or operating" (R. 1252) - was not by any stretch illegal or unethicaL Indeed, no less than the New York Rules of Professional Conduct approve of such payments to fact witnesses for lost time. Specifically, Rule of Professional Conduct 3 .4(b)( I) states, 22 NYCRR § 1200, Rule 3 .4(b)( 1 ) (emphasis added): A lawyer shaH not ... offer an inducenlent to a witness that is prohibited by law or pay, offer to payor acquiesce in the payment of compensation to a witness contingent upon the content of the witness's testimony or the outcome of the matter. A lawyer may advance, guarantee or acquiesce in the payment of 45 · . . reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses; New York State and American Bar Association ethics opInions similarly approve of payment to fact witnesses for the reasonable value of their lost time. See New York State Bar Ethic Opinion 668; American Bar Association Formal Opinion 96-402; see also, Kitson and Gabay Rafiy, Paying a Fact Witness For Time Needed To Prepare and Testify, NYLJ, July 14, 1994, at 7, col3. Plaintiffs contrary position threatens chaos upon the persona) injury bar, which routinely pays treating physicians commensurate with their professional rates for time away from their practice when cal1ed upon to testify. Indeed, the testimony of highly skilled, highly compensated physicians is necessary to explain to juries the physicians' observations, including mechanism of injury, as Dr. Krosser did here. Plaintiff took issue with it on appeal only to distract the court from the fatal shortcomings of her case. B. The CPLR Does Not Cap Witness Fees Contrary to plaintiff's assertion, the Appellate Division did not find that "the only compensation which Dr. Krosser was entitled to, as a matter of law, was the statutory provision of$15 per day plus 23¢ per mile" (Plaintiff's Brief at 16). Rather the Appellate Division acknowledged that CPLR 800 1 (a) 46 "mandates" such payment "but does not expressly prohibit voluntary payments made in excess of that fee schedule." Caldwell v. Cablevision Systems Corp., 86 A.D.3d 46,50 (2d Dep't 2011). CPLR 2303 provides that "[a]ny person subpoenaed shall be paid or tendered in advance authorized traveling expenses and one day's witness fee". CPLR 8001 provides that such subpoenaed person "shall receive for each day's attendance fifteen dollars for attendance fees and twenty-three cents as travel expenses for each mile". While these provisions prescribe what a subpoenaed witness is entitled to be paid, nothing in any statute bars reimbursing the witness more than what is legally required. Indeed, the Legislative Report on CPLR 8001(a) acknowledges that the statutory '-witness and mileage fees may not be intended to compensate completely for the losses incurred in attending". The report further states that "there is no need to allow the sum to become absurdly small," CPLR 8001 Legislative Studies and Reports, Subd. (a). The only cap that the statutory fee provides is on taxable disbursements in favor of the successful litigant. See Pauzar v. Children's Hosp. of Buffalo, 167 A.D.2d 933 (4th Dep't 1990); Davis v. McDaniel, 60 Misc.2d 390 (Civ. Ct., New York Co. 1969). In Pauzar v. Children's Hosp. of Buffalo, supra, the Court held that fees in excess of those set forth by CPLR 800 I may not be assessed 47 among all the parties. This necessarily and implicitly acknowledges the propriety of compensation in excess of those set forth in CPLR 8001. In Davis v. McDaniel, supra, the court explained that any fees paid in excess of the required payment under CPLR 8001(a) constitute a gratuity that cannot be taxed. Thus, while a party cannot recover more than the statutory fee from another party, the CPLR does not dictate how much a party can compensate a witness for lost time. C. Excluding Testimony Of A Witness Compensated Beyond CPLR 800 I Is Impracticable And Bad Po ticy In words well-suited for this case, Justice Gabrielli stated in his dissenting opinion in Dudley v. Kerwick, 52 N.Y.2d 542, 553 (1981): "[g]reat cases like hard cases make bad law" (Northern Securities Co. v. United States, 193 U.S. 197, 400, 24 S.Ct. 436, 486, 48 L.Ed. 679 [HOLMES, J.D. The import of this oft-quoted maxim is obvious. Cases which present a particularly sympathetic set of facts or which have received a high degree of notoriety may often tempt courts and Judges to adopt legal rules that serve well for the moment but cannot withstand the test of time. I am afraid that this case presents a classic illustration of the phenomenon. Plaintiff concedes that fact witnesses such as Dr. Krosser are entitled to "reasonable compensation" for their time, measured by professional rates (Plaintiffs Brief at 25-26). Nevertheless, in a resounding disconnect she perplexingly claims that "Dr. Krosser only had a legal right to compel the $15 per day statutory fee set forth in CPLR § 8001 ( a)" (Plaintiffs Brief at 20-21 ). 48 Besides legally insupportable, this argument is impractical and bad policy for a number of reasons. Any such rule would generate the perverse and unmanageable result where a witness travelling, for example, from Niagara Falls to Westchester County (this action's venue) would be entitled to no more than $15 plus 23 cents per mile under CPLR 8001 (a), whereas no such limit would apply to a witness simply crossing the Tappan Zee Bridge from New Jersey. In particular, CPLR 8001(a) prescribes these payments only for "[a]ny person whose attendance is compelled by a subpoena". (Emphasis added). A witness outside the state, however, is not amenable to service of a subpoena compelling his or her attendance before a New York court. See Judiciary Law § 2-b; Matter of Stephen, 239 A.D.2d 963, 963 (4th Dep't. 1997). Thus, the statutory fee that plaintiff urges should determine the reasonableness of compensation for subpoenaed witnesses does not apply to a witness traveling from another state who is not amenable to subpoena service. Such a rule urged by plaintiff would create the conv01uted and inequitable result that a subpoenaed witness required to travel, for example, 406 miles from Niagara Falls to Westchester County would be limited to $108.38 in attendance fees and travel expenses, whereas no such limit would apply to a witness travelling far less distance simply across the Tappan Zee Bridge from New Jersey_ 49 Significantly, but not surprisingly, plaintiff wholly fails to address the obvious consequences of her proposed rule. Rather, she myopically seeks a reversal, new trial and preclusion of Dr. Krosser's testimony under any circumstance. Not only would her proposed rule result in a hardship to the subpoenaed witness in New York, but no logical or policy reason exists to compensate witnesses within or without the state differently. Furthermore, and perhaps most importantly, plaintiffs proposed rule would have the aberrant effect of limiting the compensation of unwilling witnesses who participate only under subpoena while rewarding witnesses eagerly agreeing to testify without a subpoena for much greater sums. Although plaintiff does not limit her argument to doctors who testify as fact witness, physicians, as a class, illustrate the problems with her proposed approach. First, doctors are highly trained, highly specialized and highly compensated professionals. Under no stretch of the imagination does the statutory witness fee realistically approximate either the value of the services they provide or the value of their loss of time to appear in court and testify. As Dr. Krosser explained here, had he not been in court, he would have been treating patients or operating. Notably, however, despite having enjoyed the freedom to do so, plaintiff avoided questioning Dr. Krosser on the value of his time. While the Appellate Division suggested the $10,000 payment was 50 "disproportionate", the record is glaringly devoid of any support for that conclusion. More importantly, because of the necessity of medical testimony in establishing or refuting a personal injury claim, doctors are extremely susceptible to being dragged into litigation, even if they do not wish to participate. Plaintiff's rule would have the irrational result of limiting compensation of those doctors who participate only under subpoena to $15 plus 23 cents per mile, whereas no such limit would apply to doctors who willingly agree to testify without a subpoena. While one would like to believe that witnesses always honor subpoenas, we all know this is not the reality. And, this Court must address reality to announce a state-wide rule. In reality, the state judicial system lacks the resources to dispatch the Sheriff to track down any - let alone every - witness who fails to appear pursuant to subpoena. Even if they had the resources, tribunals would grind to a halt while waiting for these witnesses to be located and hauled into court by the Sheriff. To be sure, no attorney would want to jurors to know that his or her witness was the source of their extended period of delay doing nothing. Thus, reasonable compensation is approved, fair and works. 51 Plaintiff s proposal, however, would bar payments beyond the meager statutory fee to witnesses unwilling to testify without a subpoena, while authorizing payments to witnesses who volunteer to give testimony in exchange for the payment. Such a rule turns the law and common sense on its head, is bad policy, and will create the perverse incentive of penalizing parties who rely on doctors and other unwilling witnesses reluctant to participate without a subpoena. D. None Of The Dangers Plaintiff Complains Of Exist Plaintiff fails to cite a singJe authority to support her inconsistent position that Dr. Krosser was entit1ed to no more than $15 per day. She relies on inapposite cases, mostly from foreign jurisdictions, and inapplicable contracts treatises that do not even address the issue of paid witness testimony. The dangers of bribery, subornation of perjury and other horribles addressed in these inapposite cases are simply nonexistent here. Despite meandering through countless principles and authorities, plaintiff'S position in actuality lacks any support. She cites general language from contracts treatises that do not even address the issue of a paid witness' testimony. She likewise relies on inapposite and mostly foreign cases regarding charges of bribery, subornation of perjury and witness tampering. Significantly, 52 plaintiff offers no facts from any of these cases, and only block quotes abstract principles unanchored from any context or meaning. To be sure, the dangers of bribery and subornation of perjury addressed in these inapposite cases are simply nonexistent here: Dr. Krosser quoted verbatim from his consultation note, which was in evidence as a business record. This was limited to the history he had taken from plaintiff within ten hours after her accident. Treating physicians are routinely called upon for such testimony and compensated commensurate with professional rates for doing so. 1. Plaintiff Unavailingly Relies Upon Dissimilar Law And Outdated, Subsequently Amended Contract Treatises Plaintiff relies on Clifford v. Hughes, 139 App. Div. 730 (2d Dep't 1910) and inapplicable contracts treatises having nothing to do with the validity of witness testimony for the proposition that Dr. Krosser was entitled to only $] 5 per day. Significantly, however, plaintiff provides only a block quote with no factual context from the Clifford case. This is because it refutes, rather than supports, her position. The plaintiff in Clifford was an attorney who had directed an individual to deposit with the Surrogate's Court a will that the individual had discovered. Clifford v. Hughes, supra at 732. The attorney subsequently testified in a probate proceeding on the testator's will, pursuant to an agreement by the 53 testator's son to pay him at his professional rate for his time. See id. at 731. His testimony, procured by an agreement to pay him at his professional rate, was received into evidence at the probate proceeding. See id. This flatly undermines plaintiff's argument that such testimony must be precluded. Plaintiff flatly ignores the filcts of Clifford as they are inconvenient to her argument. Instead, she yanks out of context a single quote about the contractual rights between the litigant and witness, while failing to address the validity of the testimony, which is the issue she herself raises. Further illustrating the feebleness of her position, plaintiff relies on contract treatises addressing the enforceability of contractual rights between litigants and witnesses, having nothing to do with the validity of witness' testimony_ For example, the section of Williston on Contracts she quotes does not address the validity of paid witness testimony and further contains no per se prohibition on a fact witness maintaining an action to receive his or her agreed upon compensation. Next, plaintiff revealingly quotes from a section of Wigmore on Evidence that discusses the tension between the antiquated notion of the utopian idyll of testifying cheerfully out of civic duty and the reality that the witness must sacrifice time to do so (Plaintiff's Brief at 21). Plaintiff, however, disingenuously provides a block quote, stripped of context, that addresses only 54 the former. This section provides: "that the ordinary witness should be paid more than the nominal dollar, - i.e., should be fully indemnified for sacrificing his day's livelihood in order to perform his testimonial duty - is a plausible assertion." 8 Wigmore, Evidence § 2202 (1961)( emphasis added). The section goes on to theorize, however, that the tangible sacrifice of losing a day's livelihood is compensated for by the ennoblement that comes from performing the testimonial duty. Nevertheless, the reward of such ennoblement comes at the price of "depriving witnesses occasionally of adequate compensation." Id. On appeal, plaintiff further cites to what she labels as the -"2004" version of American Jurisprudence for the purported proposition that an agreement to pay a witness subject to process is void, as follows (Plaintiff's Opening Brief, at 21 ): A special contract to pay an ordinary witness amenable to process more than the regular fee is unenforceable for want of consideration .... Moreover, because the contract offers enticement to perjury it tends thereby to pervert the course of justice. It is contrary to public policy and void. In actuality, the above language derives from the 1992 edition, which was subsequently amended in 2004 and renumbered § 67. Notably, the current version does not include language requiring the witness to be subject to service of process, undermining plaintiff's claim that CPLR 800 I caps the witness fee for subpoenaed witnesses. It provides as follows, 81 AmJur.2d § 67: 55 A special contract to pay an ordinary witness more than the regular fee is unenforceable for want of consideration, because the performance of a legal duty is not sufficient consideration to support a promise. Moreover, because the contract offers enticement to perjury and tends thereby to pervert the course of justice, it is contrary to public policy and void. Moreover, plaintiff omits language regarding the promisor's obligation, which further makes clear that the section addresses only the contractual rights between the witness and the party, not the validity of the testimony. See 81 AmJur.2d § 67.3 In short, plaintiff's reliance on subsequently amended treatises dealing with contractual rights between a litigant and witness and a singJe quote from Clifford aim at misdirection. Plaintiff ignores the salient point in Clifford that the witness' testimony, procured by an agreement to pay his professional rate, was received into evidence, the very antithesis of her argunlent that such testimony must be precluded. See Clifford v. Hughes, supra at 731. 2. Plaintiff's Parade Of Inapposite Cases Plaintiff unavailingly relies on a handful of inapposite cases in a flawed effort to show that payments to fact witnesses are improper. She relies heavily on Matter of Robinson, 151 App. Div. 589 (1st Dep't, 1912), which involved an attorney disciplinary proceeding. The respondent was the attorney for a railroad 3 Plaintiff engaged in similar lega] misrepresentations to the Appellate Division, which prompted a successful motion to strike portions of her reply brief (86 A.D.3d at 57-58), a copy of which motion accompanied CSf's leave opposition on file in this Court. 56 company involved in numerous personal injury actions by virtue of the nature of its business. See ide at 589-590. The Court disbarred the respondent for a pattern of approving payments to its own witnesses, opposing witnesses, public investigators, and court officials expressly for the purpose of impeding and obstructing the administration of justice. ide at 591-592, 595-596, 601. Moreover, distinguishing the respondent attorney's bribery, the court acknowledged that "[t]o procure the testimony of witnesses it is often necessary to pay the actual expenses of a witness in attending court and a reasonable compensationfor the time lost." Id. at 600 (emphasis added). The other cases from which plaintiff conspicuously strips quotations from any factual context similarly do not support her assertions. See In re Howard, 372 N.E,2d 371 (Ill. 1977) (respondent attorney disbarred for bribing arresting officer); Florida Bar v. Jackson, 490 So. 2d 935 (Fla., 1986) (respondent attorney suspended from practice for impeding litigant's access to witnesses by soliciting a $50,000 payment for his clients' testimony); Maglione v. Cunard Steamship Co., 30 A.D.2d 784 (1st Dep't 1968) (unethical for expert witness to accept retainer from both sides); Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Assoc., 865 F. Supp. ] 516 (S.D. Fl., 1994) (no violation of Federal Anti-Gratuity Statute prohibiting payments to witnesses for purpose of influencing testimony where defendant paid $640,103 to accomplices 57 in $9 million jewelry theft case for their testimony regarding the theft); Rocheux IntI. v. U.S. Merchants Financial Group, 2009 WL 3246837 (D.N.J. 2009) (disgruntled former employee offered to provide damaging testimony in exchange for a fee); In re Telcar Group, Inc., 363 B.R. 345 (E.D.N.Y. 2007) (where bankruptcy trustee had claims against bankrupt's former principai and against lender that funded former principal, court disapproved settlement with former principal where value of settlement depended on testimony that former principal would give in support of claim against lender); Physician's Choice of Arizona, Inc. v. Visual Changes Skin Care Infl, Inc., 2006 WL 726903 (D. Az, 2006) (offer of $100 to customers and industry contacts for each invoice relevant to patent action did not violate Federal Anti-Gratuity Statute or Arizona ethics rules); see also PAEth. Op. 95-126A (Pennsylvania ethics rule probably prohibits fact witness from receiving compensation for preparing to testify but the witness is entitled to reasonable compensation for time attending or testifying). Thus, these cases are irrelevant and of no use to this Court. Plaintiff acknowledges the admissibility of an informant's testimony in criminal cases (Plaintiffs Brief at 33, citing United States v. Cervantes-Pacheco, 826 F.2d 310 [5th Cir. 1987]) notwithstanding that "[i]t is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence". States v. Cervantes-Pacheco, supra at 3 15. Indeed, "[a] witness * * * who is 58 paid a fee for his services has less of an inducement to lie than witnesses who testify with promises of reduced sentences." Id. Nevertheless, plaintiff asserts that paid witness testimony should be excluded in civil cases. Plaintiff offers no reason for such a distinction between criminal and civil cases, however, other than to assert without elaboration that criminal cases are "sui generis" (Plaintiff's Brief at 33). Moreover, the only justification plaintiff offers for such a rule is the unreliability of witnesses paid contingent on the result of their testimony or the case (Plaintiff's Brief at 34-39). Whatever the appropriate remedy in dealing with contingent witness fees, no such arrangement existed here with Dr. Krosser. E. Plaintiff Cannot Identify Any Aspect Of Dr. Krosser's Testimony Susceptible To Any Dangers She Cites Contrary to plaintiff's assertion (Plaintiff's Brief at 39-40), Professor Siegel never stated or even implied that Dr. Krosser was bribed. Rather, like the Appellate Division, he acknowledged that the '''general observations" regarding bribery that plaintiff al1eged simply do not obtain here where "the witness was an orthopedic surgeon" and the fee "reflect[ed] the value of the witness's time." 234 Siegel's Prac. Rev. 1. Specifically, Professor Siegel explained, id.: The court points out that the fee paid can reflect the vaJue of the witness's time, if figured against what he might otherwise have done with that time. Here the witness was an orthopedic surgeon, 59 which offered a juxtaposition that the jury could, and apparently did, find supportive of the $10,000 fee. Significantly, plaintiff is unable to identify any aspect of Dr. Krosser's testimony susceptible to the concerns of bribery, witness tampering, or subornation of perjury addressed in the authorities upon which she relies. Indeed, he even agreed it was "theoretically possible" he wrote the history wrong (R. 1243). The only purported problem with his testimony she identifies derives from her self-created discrepancy about what she told him versus what she told her neighbors, husband and hospital personnel about her fall. The weaknesses in this logic are too many to ventilate. Plaintiff cannot honestly maintain that she expected all the evidence at trial to be consistent and favorable to her. This is an adversarial system. Yet, plaintiff oddly takes the purported discrepancy as a persona) affront, blaming it on some fabricated bribery of a witness who merely testified about what he recorded years earlier. Contrary to plaintiff's assertion, Nurse McConville's nursing assessment and Dr. Greco's consultation note that plaintiff's injury occurred while she was engaged in walking her dog is consistent with Dr. Krosser's consultation note and testimony that she tripped over the dog. Moreover, the trial court did not focus the jury on Dr. Krosser while ignoring the histories recorded by Nurse 60 McConville and Dr. Greco, as plaintiff asserts (Plaintiffs Brief at 54). The court simply charged the pattern jury instruction for an admission against interest: plaintiff's recorded statement to Dr. Krosser that she tripped over her dog (R. 1405-1406). See PJI 1 :55. Notably, she lodged no objection to this charge either. Had any true or questionable discrepancy existed, plaintiff certainly could have called these various authors to testify at trial, as CSI called Dr. Krosser. But she did not, despite testifying herself in rebuttal. Instead, she waited for an appeaJ to manufacture a discrepancy by misrepresenting what she told her neighbors, husband and hospita1 personnel, then absurd1y asserting that Dr. Krosser was bribed to quote verbatim from his records in evidence. F. Proper Redress Is Cross-Examination And Summation Comment The Appellate Division astutely observed that no reason exists to preclude the testimony of a paid fact witness. Indeed, they have a much less motivation to fabricate testimony than criminals promised reduced sentences for their testimony and parties with a direct interest in the outcome of the case, who are nevertheless competent to testify. Specifically, the Appellate Division stated: "Here, as in cases in which interested witnesses testify or in which testimony is induced by a promise of a reduced sentence, 'we have confidence in the jury's 61 ability to assess counsels' arguments' about the suspect credibility of factual testimony by a paid fact witness and 'to evaluate [that] witness' credibility accordingly'''. Caldwell v. Cablevision Sys. Corp., supra at 55, quoting United States v. Persico, 832 F .2d 705, 717 (2d Cir 1987). It is well settled that cross-examination is a litigant's tool for exposing inaccuracies and falsehoods in testimony, and thus, has been dubbed "the greatest legal engine ever invented for the discovery of truth". People v. Branch, 83 N. Y.2d 663, 673 (Titone, J., dissenting) (1994). quoting 5 Wigmore, Evidence § 1367 (Chadbourn rev. 1974). Thus, the Appellate Division correctly concluded that the proper remedy was to permit plaintiff to explore the matter on cross-examination and summation and allow the jury to evaluate the reasonableness of the payment and what affect it may have had on Dr. Krosser's credibility. Caldwel1 v. Cablevision Sys. Corp., supra at 55. This is precisely what the trial court did. Tellingly though, while plaintiff cross-examined Dr. Krosser regarding his compensation and brought it up again in summation to the jury, plaintiff never argued that it had any effect on the veracity of his testimony. Rather, she attacked only the veracity of the note itself (R. 1229, 1241-1245). Then, in summation, plaintiff unambiguously posited that the veracity of Dr. Krosser's 62 testimony depended solely on the accuracy of his note (which she does not challenge on appeal) (R. 1385-1386). Overall, plaintiff advanced no argument to the jury challenging the veracity of Dr. Krosser's testimony about which she now complains. Moreover, although the court imposed no limitations, plaintiff never cross-examined Dr. Krosser on his income, hourly rate, office, treatment or surgical schedule, disruption in his practice, or explored any similar issues surrounding his testifying in court necessary to weigh the reasonableness of compensation. She never availed herself of the chance to show $10,000 was unreasonable for his time. Instead, she presupposes it was unreasonable, despite the absence of any developed record permitting such a conclusion. Accordingly, the Appellate Division's order should be affirmed. POINT V AN AL TERNA TE GROUND FOR AFFIRMANCE FURTHER ruSTIFIES THE RESULT REACHED IN THIS CASE A respondent, on an appeal by the adverse party, may raise any duly preserved claim of error, which, if corrected, would support the lower court's determination. See CPLR 5501 (a)( 1); Parochial Bus Systems, Inc. v. Board of Education, 60 N.Y.2d 539,545-546 (1983). Regardless of the abstract issue of 63 the propriety of fact witness compensation, this Court should affirm on the alternate ground that plaintiff failed to present a prima facie case of negligence. A. Plaintiff Failed To Present A Prima Facie Case Of Negligence 1. Applicable Law For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence "'[ilt is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.'~ Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978). HIn a trip and fall case, a plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action." Louman v. Town of Greenburgh, 60 A.D.3d 915,916 (2d Dep't 2009)(quotation marks and alteration omitted), Where "it is just as likely that the accident could have been caused by some other factor, such as a misstep or loss of balance, any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation." Manning v. 6638 18th Avenue Realty Corp., 28 A.D.3d 434, 435 (2d Dep't 2006) quoting Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 478 (2d Dep't 2001); accord Hartman v. Mountain Val. Brew Pub, 301 A.D.2d 570, 570 (2d Dep't 2003). "'Mere speculation as to the cause of a fall, where there can be 64 many causes, is fatal to a cause of action." Garvin v. Rosenberg, 204 A.D.2d 388, 388 (2d Dep't 1994); Manning v. 6638 18th Avenue Realty Corp., supra at 435. 2. Plaintiffs Claim That She Tripped Where A Test Pit Had Been Backfilled Is Speculation Here, plaintiffs sole evidence of a defect in the roadway created by CST was her own testimony that she tripped on a "dip" where a test pit had been backfilled as she was crossing the street in front of the middle of her driveway (R. 1094, 1173, 1177). As detailed above, however, she admittedly did not know where along the width of the street in front of her driveway she had fal1en and never looked down to see where in the street the alleged ·'dip" was located (R. ] 179-1181). Furthermore, and significantly, there was no test pit dug in the area in front of her driveway where was crossing the street (R. 1270-1272, 1274; Plaintiffs Brief at 8). Yet, in an effort to fashion some defect attributable to CSI, plaintiff misleadingly describes the condition of the road during the first phase of work before the backfilled trench had been capped with temporary cold patch, which was in place at least eight days prior to her accident. Wessels and Michitsch, whom she presented as witnesses, each acknowledged having no idea of the road's condition in front of plaintiffs home or the state of any temporary patch 65 on October 11, 2006, when plaintiff tripped eight days after the first phase had been completed (R. 919,1013,1023-1028). Wessells simply testified that while the first phase was ongoing, the trench was "slightly depressed" before temporary asphalt was applied (R. 893). Michitsch had written a letter to the City complaining of conditions generally prior to October 3 when the first phase had been completed (R. 1452-1453), but he agreed at trial that the trench had been covered with cold patch by then (R. 1013, 1027-1028). Nevertheless, citing to Michitsch's testimony, plaintiff misleadingly asserts that "[w]ithout 'cold patching', rainfall washes out the dirt backfill - and this is exactly what happened on Benefield Boulevard" (Plaintiff's Opening Brief at 9). In short, plaintiff offered no evidence of any defect in the road way at the time and location of her accident other than her assertion that she tripped on a "dip" where a test pit had been backfilled. (R. 957-959, 1267-1268, 1302-1303, 1558, 1584.1-1584.59). This assertion, contrary to the record evidence that there was no test pit in front of her driveway where she feU, was pure speculation. Plaintiff admittedly did not know where in the street in front of her driveway she feU and she never looked down to see where any alleged "dip" was located. See Louman v. Town of Greenburgh, supra (where plaintiff was not looking where she was walking and was unaware what caused her to fall, her 66 subsequent claim that she tripped on crack in sidewalk was speculation); Manning v. 6638 18th Avenue Realty Corp., supra (where plaintiff did not see \vhat caused her to fall, her claim that she tripped on '\vhatever fell of the conveyor at the time" because "there was always string and paper" and she "had to slip on something" was speculation). Accordingly, without even reaching Dr. Krosser's testimony, as plaintiff failed to present a prima facie case of negligence the complaint should have been dismissed because the evidence compelled the jury's verdict of no liability. CONCLUSION For the foregoing reason, plaintiffs appeal should be dismissed or the Opinion & Order of the Appellate Division should be affirmed. Of Counsel Christopher Simone Scott M. Fusaro Shaub, AhmJJty, Citrin & Spratt, LLP 7\ II ~ Christopher Simone 1983 Marcus Avenue Lake Success, NY 11042 (516) 488-3300 Appellate Counsel to Wilson, Elser, Moskowitz, Edelman & Dicker Attorneys for CSI 67