Coleman v. N.Y.C. Transit Auth.

• Decision Date: 03 December 2015
• Citation: 21 N.Y.S.3d 46,134 A.D.3d 427
• Parties: Diane COLEMAN, etc., Plaintiff–Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Appellants. Dorothy Lemon, Plaintiff–Respondent, v. New York City Transit Authority, et al., Defendants–Appellants, Diane Coleman, etc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 427

21 N.Y.S.3d 46

Diane COLEMAN, etc., Plaintiff–Respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Appellants.

Dorothy Lemon, Plaintiff–Respondent,

v.New York City Transit Authority, et al., Defendants–Appellants,Diane Coleman, etc., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Dec. 3, 2015.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellants.

Kramer & Pollack, LLP, Mineola (Joshua D. Pollack of counsel), and Churbuck Calabria Jones & Materazo, P.C., Hicksville (Robert B. Churbuck of counsel), for Diane Coleman, respondent.

Frank & Seskin, LLP, New York (Scott Howard Seskin of counsel), for Dorothy Lemon, respondent.

SWEENY, J.P., ACOSTA, RICHTER, MANZANET–DANIELS, JJ.

Judgment, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered on or about July 21, 2014, after a jury trial, against defendants New York City Transit Authority (NYCTA) and Annie M. Canty on liability, awarding plaintiff Diane Coleman, as administratrix of the goods, chattels and credits which were of Dorothy Dunnigan, $1.25 million for past pain and suffering, as reduced by stipulation, plus interest, costs and disbursements, unanimously modified, on the facts, to vacate the damages award and remand the matter for a new trial on damages, unless said plaintiff stipulates, within 30 days of service of a copy of this order with notice of entry, to a reduction of the award for past pain and suffering to $1 million, and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs. Judgment, same court and Justice, entered on or about October 17, 2014, after the same jury trial, against defendants NYCTA and Canty on liability, awarding plaintiff Dorothy Lemon, as reduced by stipulation, $1.5 million for past pain and suffering, $2 million for future pain and suffering over a period of 10 years, $97,600 for past lost earnings, and $728,000 for future lost earnings over a period of 35 years, plus interest, costs and disbursements, unanimously modified, on the facts, to vacate the future lost earnings award and remand the matter for a new trial on such damages, unless said plaintiff stipulates, within 30 days of service of a copy of this order with notice of entry, to a reduction of the award for future lost earnings to $520,000 over a period of 25 years, and to entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs. The trial court was correct in redacting from plaintiff Lemon's hospital record a social worker's statement, which included the information that the vehicle driver " made an illegal left turn ..." First, it is not clear whether the statement was made by Lemon. Even assuming it was, the statement was not made for purposes of diagnosis and treatment (see Williams v. Alexander, 309 N.Y. 283, 287–288, 129 N.E.2d 417 [1955] ; see also Preldakaj v. Alps Realty of N.Y. Corp., 69 A.D.3d 455, 456, 894 N.Y.S.2d 21 [1st Dept.2010] ). Additionally, the statement is not admissible against Lemon as a party's admission against interest, as the statement itself was not against Lemon's interest, but at best, against Dunnigan's interest, the driver at the time of the accident (see generally

Garmon v. Mordente, 32 A.D.2d 532, 532–533, 299 N.Y.S.2d 689 [2d Dept.1969] ). Moreover, the statement itself does not relate to a matter of fact, because the word "illegal" is a conclusion of law.

The trial court providently exercised its discretion in precluding testimony from defendants' biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court's exercise of discretion in precluding this testimony (see LaFurge v. Cohen, 61 A.D.3d 426, 426, 876 N.Y.S.2d 391 [1st Dept.2009], lv. denied 13 N.Y.3d 701, 2009 WL 2621606 [2009] ), whether applying a "good cause" standard (Peguero v. 601 Realty Corp., 58 A.D.3d 556, 564, 873 N.Y.S.2d 17 [1st Dept.2009] ) or a "willful or prejudicial" standard (see Banks v. City of New York, 92 A.D.3d 591, 591, 939 N.Y.S.2d 39 [1st Dept.2012] ). We also see no...