Acunto v. Conklin

• Decision Date: 08 April 1999
• Citation: 687 N.Y.S.2d 779,260 A.D.2d 787
• Parties: DAVID ACUNTO, Respondent,<BR>v.<BR>BRUCE S. CONKLIN et al., Defendants and Third-Party Plaintiffs-Appellants.<BR>SAXCO ENTERPRISES, INC., et., Third-Party Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

260 A.D.2d 787

687 N.Y.S.2d 779

DAVID ACUNTO, Respondent,

v. BRUCE S. CONKLIN et al., Defendants and Third-Party Plaintiffs-Appellants.SAXCO ENTERPRISES, INC., et., Third-Party Defendants-Appellants.

Decided April 8, 1999.

Mikoll, Yesawich Jr., Carpinello and Graffeo, JJ., concur.

Cardona, P. J.

On August 9, 1993, plaintiff was injured when he fell from a roof while working at a construction site located in the Town of Wilton, Saratoga County. He commenced this personal injury action against the owner of the property, defendant Bruce S. Conklin, and the general contractor, defendant Bruce S. Conklin and Company. Following joinder of issue, plaintiff obtained summary judgment against defendants on the issue of liability. Defendants, in turn, commenced a third-party action against plaintiff's employer, third-party defendants, Saxco Enterprises, Inc. and Dennis G. Saxton. Following service of an answer to the third-party complaint, defendants were granted summary judgment against third-party defendants on the ground of common-law indemnification.

Thereafter, a jury trial was held on the issue of damages. The verdict awarded plaintiff $300,000 for past pain and suffering and $1,009,375 for future pain and suffering over an expected life span of 47½ years. Supreme Court denied third-party defendants' posttrial motion to set aside the verdict and judgment was entered in plaintiff's favor. Defendants and third-party defendants (hereinafter collectively referred to as the parties) appeal.

We turn first to the parties' contention that Supreme Court erred at trial by admitting certain testimony of John Aversa, an orthopedic surgeon who treated plaintiff following the accident. Specifically, the parties assert that Aversa's testimony concerning plaintiff developing arthritis in various parts of his body as a result of the injuries sustained in the accident should have been precluded because this condition was not disclosed in plaintiff's bill of particulars. We note that "`[t]he purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial'" (Hayes v Kearney, 237 AD2d 769, quoting Twiddy v Standard Mar. Transp. Servs., 162 AD2d 264, 265) and that, generally, evidence of injuries or conditions not enumerated by the plaintiff in the bill of particulars will not be permitted at trial (see, Chapman v State of New York, 227 AD2d 867, 868). Such evidence, however, may be introduced where it flows immediately and necessarily from the information conveyed in the bill of particulars (see, Holbrook v Jamesway Corp., 141 AD2d 905, 907; Grey v United Leasing, 91 AD2d 932, 934) or where the record reveals that the defendant should have known of such injury or condition (see, Holbrook v Jamesway Corp., supra, at 907; Porter v Shapiro, 124 AD2d 794, 795).

In the instant case, the bill of particulars described in medical detail the injuries to plaintiff's back, left arm and wrist, left leg and ankle. It further stated, with respect to future limitations, that it was anticipated that plaintiff would suffer a "permanent inability to flex or pronate the left ankle resulting in an abnormal walking gait and pain with walking" as well as a limited range of motion in the left wrist and that all limitations "will be increased with age and use and the pain associated with such use will become more frequent". No specific mention, however, was made of plaintiff's likelihood of developing arthritis in the spine, wrist and midfoot, matters specifically testified to by Aversa.

In our view, arthritis is not a condition which "immediately and necessarily" flows from the specific injuries set forth in plaintiff's bill of particulars and, therefore, medical evidence concerning this condition should not have been admitted at trial (see, Holbrook v Jamesway Corp., supra, at 907). Although Aversa's videotaped testimony was taken approximately one month before trial, that did not obviate the prejudice to the parties since they did not have sufficient time to prepare for and effectively cross-examine Aversa on this issue. Moreover, contrary to plaintiff...