Hancock v. 330 Hull Realty Corp.
Decision Date | 12 March 1996 |
Citation | 638 N.Y.S.2d 654,225 A.D.2d 365 |
Parties | Ebony HANCOCK, an Infant, by Her Parent and Natural Guardian, Marilyn Hancock, Plaintiff-Respondent, and Marilyn Hancock, Respondent, et al., Plaintiff, v. 330 HULL REALTY CORP., Defendant-Appellant. |
Court | New York Supreme Court — Appellate Division |
B.J. Isaac, for plaintiff-respondent.
A.S. Friedman, for defendant-appellant.
Before WALLACH, J.P., and ROSS, NARDELLI, WILLIAMS and MAZZARELLI, JJ.
Judgment, Supreme Court, Bronx County (Jerry Crispino, J.), entered May 11, 1995, which, after a jury trial, awarded plaintiffs damages based upon the principal sum of $2,250,000, and thereupon structured under CPLR article 50-B, unanimously affirmed, without costs.
The trial court did not abuse its discretion in allowing plaintiff to call an additional medical witness on rebuttal after the defense had rested, in lieu of precluding the testimony of defendant's expert as sought by plaintiffs (see, Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293).
Plaintiffs were also properly permitted to amend their complaint to conform the pleadings to the proof and to increase the ad damnum from $1 million to the amount of the verdict, as reduced, based upon the medical and expert testimony adduced at trial, since the court, in the absence of prejudice, may, pursuant to CPLR 3025(c), permit pleadings, including the ad damnum clause, to be amended either before or after judgment to conform to the evidence (Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 444 N.Y.S.2d 571, 429 N.E.2d 90).
The statements made by plaintiffs' counsel at trial and during summation, when taken in context, constituted fair comment on the evidence adduced at trial, and were not unduly prejudicial. We note that upon objections by defense counsel, the court repeatedly gave the jurors curative instructions and defense counsel never moved for a mistrial (Torrado v. Lutheran Med. Center, 198 A.D.2d 346, 603 N.Y.S.2d 325).
We reject defendant's claim that the damage award is legally defective because plaintiffs allegedly failed to present evidence of the extent to which lead-poisoning aggravated the infant plaintiff's pre-existing handicaps. Plaintiffs' claim at trial, as accepted by the jury, was that the infant plaintiff's retardation and learning disabilities were solely caused by lead ingestion rather than by any other factors, and defendant failed to request a charge on...
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Bertram v. N.Y. Presbyterian Hosp.
...to attack Dr. Fethke's credibility, see Chappotin v. Citv of New York, 90 A.D.3d 425, 426 (1st Dep't 2011); Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365 (1st Dep't 1996); Bianco v. Flushing Hosp. Med. Ctr., 79 A.D.3d 777, 779 (2d Dep't 2010); Friedman v. Marcus, 32 A.D.3d 820 (2d Dep't ......
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Frankel v. Vernon & Ginsburg, LLP
...to amend the complaint to add a request for attorneys' fees, and the court granted the motion (see Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365, 638 N.Y.S.2d 654 [1st Dept. 1996] ). Defendants were not prejudiced, as they had demanded (in one of their counterclaims) attorneys' fees purs......
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1995 Cam LLC v. W. Side Advisors
... ... also Hancock v 330 Hull Realty Corp., 225 A.D.2d 365 ... [1st Dept ... ...
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1995 Cam LLC v. W. Side Advisors, LLC
... ... also Hancock v 330 Hull Realty Corp., 225 A.D.2d 365 ... [1st Dept ... ...