City of New York

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentJun 24, 1996
228 A.D.2d 659 (N.Y. App. Div. 1996)
228 A.D.2d 659645 N.Y.S.2d 499

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June 24, 1996

Appeal from the Supreme Court, Kings County (Clemente, J.).

Ordered that the judgment is reversed, on the facts and as an exercise of discretion, with costs, and a new trial is granted on the issue of damages only, unless within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to decrease the verdict on damages from the sum of $1,000,000 to the sum of $60,000 and to the entry of an amended judgment in the principal sum of $60,000 accordingly. In the event that the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for entry of an appropriate amended judgment accordingly.

Based on its own medical records and the plaintiff's examination before trial, the defendant knew that the plaintiff claimed that he suffered certain side-effects from medications which were prescribed pursuant to an erroneous diagnosis of tuberculosis. As a result, the Supreme Court providently exercised its discretion in allowing testimony at trial about those side-effects, even though the plaintiff omitted this claim from his bill of particulars ( see, Van Derzee v. Knight-Ridder Broadcasting, 185 A.D.2d 1011; Holbrook v. Jamesway Corp., 141 A.D.2d 905, 907; compare, Porter v. Shapiro, 124 A.D.2d 794).

While the Supreme Court erred in preventing the defendant from cross-examining the plaintiff about his failure to mention the side-effects from medications in the bill of particulars, the error is harmless because, on this record, the potential for further impeachment of the plaintiff was not sufficiently significant to have brought about a different verdict ( see, Esner v. Janisziewski, 180 A.D.2d 991; Hayes v. Henault, 131 A.D.2d 930).

During cross-examination of the plaintiff, the defendant read only a portion of the plaintiff's examination before trial in an effort to prove that the plaintiff never complained about specific side-effects from the medications. Because the defendant cross-examined the plaintiff on only a portion of his examination before trial concerning this issue, the Supreme Court properly permitted the plaintiff's attorney to read, during redirect examination, other portions of the plaintiff's examination before trial which demonstrated that he made very specific complaints about the side-effects of the medications ( see, CPLR 3117 [b]).

Contrary to the defendant's claims, the plaintiff's testimony was credible and the verdict was supported by the weight of the credible evidence ( see, CPLR 4404 [a]; Micallef v. Miehle Co., 39 N.Y.2d 376, 380-381; Nicastro v. Park, 113 A.D.2d 129, 131-132).

However, the damages award of $1,000,000 is excessive to the extent indicated herein, in light of the plaintiff's age, the absence of any permanent injuries, lost wages or lost employment opportunities, and in light of the fact that the adverse side-effects disappeared even while he was being treated ( compare, Ogle v. State of New York, 191 A.D.2d 878, 879; Byrd v New York City Tr. Auth., 172 A.D.2d 579; Maxwell v. City of New York, 156 A.D.2d 28; Gnoj v. City of New York, 29 A.D.2d 404, 405).

The defendant's remaining contentions are not preserved for appellate review or without merit. Miller, J.P., Pizzuto, Santucci and Hart, JJ., concur.