Rizzo v. Kay

• Decision Date: 21 December 2010
• Citation: 79 A.D.3d 1001,915 N.Y.S.2d 92
• Parties: Linda RIZZO, plaintiff-respondent, v. Gideon KAY, etc., appellant, Joseph Maniscalco, etc., defendant-respondent.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 92

79 A.D.3d 1001

Linda RIZZO, plaintiff-respondent,

v.Gideon KAY, etc., appellant,Joseph Maniscalco, etc., defendant-respondent.

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

Dec. 21, 2010.

Rawle & Henderson(Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman, Harris J. Zakarin, andMerril S. Biscone], of counsel), for appellant.

Albert W. Chianese & Associates(Judith Ellen Stone, Merrick, N.Y., of counsel), for plaintiff-respondent.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, LLP, Mineola, N.Y. (Elizabeth Gelfand Kastner of counsel), for defendant-respondent.

PETER B. SKELOS, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action to recover damages for dental malpractice, the defendantGideon Kay appeals from a judgment of the Supreme Court, Queens County(Hart, J.), dated July 22, 2009, which, upon a jury verdict, upon the granting of the motion of the defendantJoseph Maniscalco pursuant to CPLR 4401 to dismiss his cross claim, made at the close of the plaintiff's case, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the verdict, inter alia, as contrary to the weight of the evidence, or to set aside the damages award for past pain and suffering and future pain and suffering as excessive, is in favor of the plaintiff and against him in the principal sums of $300,000 for past pain and suffering, $150,000 for future pain and suffering, and $40,000 for special damages.

ORDERED that the judgment is affirmed, with one bill of costs.

Contrary to the appellant's contention, the conduct of the trial court did not deprive him of a fair trial.Although the manner in which the trial court questioned witnesses was inappropriate in a few instances, the court did not engage in the type of repeated prejudicial intrusions that have been found to prevent the jury from considering the evidence in a fair, calm, and unprejudiced manner ( seeMalaty v. North Ark. Wholesale Co.,305 A.D.2d 556, 759 N.Y.S.2d 400;William Capital Assoc. v. Harrison,240 A.D.2d 198, 199, 658 N.Y.S.2d 298;Vizcaino v. Gordon & Thomas Cos.,279 A.D.2d 519, 718 N.Y.S.2d 875;cf.DeCrescenzo v. Gonzalez,46 A.D.3d 607, 608, 847 N.Y.S.2d 236).In light of the fact that we have previously had occasion to reverse this same trial court based upon similar, but in our view prejudicial, conduct ( see e.g.Sutton v. Kassapides,73 A.D.3d 1021, 900 N.Y.S.2d 687;Williams v. Naylor,64 A.D.3d 588, 886 N.Y.S.2d 30;Doe v. Department of Educ. of City of New York,54 A.D.3d 352, 862 N.Y.S.2d 598;Pickering v. Lehrer, McGovern, Bovis, Inc.,25 A.D.3d 677, 811 N.Y.S.2d 696;Matter of Allstate Ins. Co. v. Albino,16 A.D.3d 682, 792 N.Y.S.2d 518;Matter of Travelers Indem. Co. v. Mohammed,14 A.D.3d 710, 788 N.Y.S.2d 615;see alsoStrocchia v. Celentano Provisions, Inc.,69 A.D.3d 607, 891 N.Y.S.2d 297;cf.Campbell v. Rogers & Wells,218 A.D.2d 576, 579, 631 N.Y.S.2d 6), wetake this opportunity to caution the trial court to be mindful that its participation in the questioning of witnesses has the potential to influence the jury and, thus, when it intervenes to clarify testimony or elicit a responsive answer, it must be careful to do so in an evenhanded and temperate manner.

Furthermore, under the circumstances of this case, it was not error for the trial court to allow testimony on the issue of whether the appellant abandoned treatment of the plaintiff before fully completing her dental work, and, in effect, to conform the pleadings to the proof adduced at trial by submitting a claim of abandonment to the jury."A trial court generally has broad discretion to deem the pleadings amended to conform to the evidence presented at the [trial], even absent a motion by a party, provided [that] there is no significant prejudice or surprise tothe party opposing the amendment"( Matter of Allstate Ins. Co. v. Joseph,35 A.D.3d 730, 731, 826 N.Y.S.2d 700;seeCPLR 3025[c];A-1 Check Cashing Serv. v. Goodman,148 A.D.2d 482, 538 N.Y.S.2d 830).Here, the appellant was not prejudiced or surprised by the admission of evidence on the issue of abandonment and the submission of this issue to the jury, since the issue was explored, and relevant evidence obtained, during discovery ( seeAlomia v. New York City Tr. Auth.,292 A.D.2d 403, 406, 738 N.Y.S.2d 695;Diaz v. New York City Health & Hosps. Corp.,289 A.D.2d 365, 366, 734 N.Y.S.2d 882).

It was also proper for the trial court to dismiss the appellant's cross claim against the defendantJoseph Maniscalco.The plaintiff failed to present any expert evidence that Dr. Maniscalco departed from good and accepted standards of dental practice, and therefore...