Dunn v. Garrett

• Decision Date: 29 April 2016
• Docket Number: 181 CA 15-00755.
• Citation: 138 A.D.3d 1387,31 N.Y.S.3d 326,2016 N.Y. Slip Op. 03283
• Parties: Terry DUNN, Plaintiff–Appellant, v. Darnell GARRETT, Niagara Frontier Transit Metro System, Inc., and Niagara Frontier Transportation Authority, Defendants–Respondents. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1387

31 N.Y.S.3d 326

2016 N.Y. Slip Op. 03283

Terry DUNN, Plaintiff–Appellant,

v.Darnell GARRETT, Niagara Frontier Transit Metro System, Inc., and Niagara Frontier Transportation Authority, Defendants–Respondents. (Appeal No. 2.)

181 CA 15-00755.

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

April 29, 2016.

Campbell & Shelton, LLP, Eden, Magavern Magavern Grimm, LLP, Buffalo (Edward J. Markarian of Counsel), for Plaintiff–Appellant.

David J. State, General Counsel, Buffalo (Vicky–Marie J. Brunette of Counsel), for Defendants–Respondents.

PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the vehicle she was driving was struck from behind by a passenger bus while the vehicle was stopped at a red light. The bus was operated by defendant Darnell Garrett and owned by the other defendants. Defendants conceded the issue of negligence, and a trial was held on the issues of causation, serious injury, and damages. The jury found that plaintiff did not suffer a serious injury as a result of the accident (see generally Insurance Law § 5102 ), but awarded plaintiff economic damages. Plaintiff moved to set aside the verdict, for a directed verdict on the issue of serious injury, and for a new trial on the issue of damages or, alternatively, for “a new trial as to all remaining issues,” but Supreme Court denied that motion. Although plaintiff concedes on appeal that there was sufficient evidence to support the jury's verdict, she contends that the court erred in denying her motion on the grounds that defense counsel's improper attacks on her credibility, along with the court's confusing jury instructions, denied her a fair trial. We agree with plaintiff that she was denied a fair trial.

It is well settled that a cross-examiner at trial is “bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility” (Jerome Prince, Richardson on Evidence § 6–305 [Farrell 11th ed 1995] ), and extrinsic evidence cannot be used to impeach a witness's credibility after the witness has provided an answer with which the cross-examiner is unsatisfied (see Badr v. Hogan, 75 N.Y.2d 629, 634–636, 555 N.Y.S.2d 249, 554 N.E.2d 890 ; Muye v. Liben, 282 A.D.2d 661, 662, 723 N.Y.S.2d 510 ). Here, defense counsel asked plaintiff during cross-examination whether she had failed an employment-related drug test, a collateral issue relevant only to plaintiff's credibility. In response, plaintiff testified that the test result was a “false positive” that was proved false upon retesting. Defense counsel then violated the collateral evidence rule when she not only referred to a lack of evidence supporting plaintiff's assertion, but introduced the drug test result in evidence in an attempt to impeach plaintiff's credibility (see Badr, 75 N.Y.2d at 635, 555 N.Y.S.2d 249, 554 N.E.2d 890 ; Huff v. Rodriguez, 88 A.D.3d 1274, 1275, 930 N.Y.S.2d 717 ).

The impact of that improper conduct was compounded when defense counsel thereafter questioned defendant's medical expert, over plaintiff's objection, about “drug use history” notations in plaintiff's medical records that, according to the expert, raised questions as to plaintiff's “credibility.” We conclude that the court erred in permitting the expert to opine on plaintiff's credibility (see Kravitz v. Long Is. Jewish–Hillside Med. Ctr., 113 A.D.2d 577, 580–581, ...