Robles v. Polytemp, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Robles v. Polytemp, Inc., 2015 NY Slip Op 3341, 127 A.D.3d 1052, 7 N.Y.S.3d 441 (N.Y. App. Div. 2015)
• Decision Date: 22 April 2015
• Docket Number: 2013-00563, Index No. 12078/09.
• Parties: Alfonso ROBLES, appellant-respondent, v. POLYTEMP, INC., et al., respondents-appellants.

127 A.D.3d 1052

7 N.Y.S.3d 441

2015 N.Y. Slip Op. 03341

Alfonso ROBLES, appellant-respondent

v.POLYTEMP, INC., et al., respondents-appellants.

2013-00563, Index No. 12078/09.

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

April 22, 2015.

Ronai & Ronai, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant-respondent.

Baxter Smith & Shapiro, P.C., White Plains, N.Y. (Sim R. Shapiro of counsel), for respondents-appellants.

CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Westchester County (Walker, J.), dated November 16, 2012, which, upon a jury verdict on the issue of damages, and upon an order of the same court dated July 20, 2012, denying his motion pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages as inadequate and for a new trial, is in favor of him and against the defendants in the principal sum of only $525,194.33, and the defendants cross-appeal, as limited by their brief, from stated portions of the same judgment which, upon a jury verdict on the issue of liability, finding them 65% at fault in the happening of the accident and the plaintiff 35% at fault, and upon the denial of their motion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and upon the jury verdict on the issue of damages, is in favor of the plaintiff and against them in the principal sum of $525,194.33.

ORDERED that the judgment is modified, on the law, by increasing the principal sum awarded to the plaintiff from $525,194.33 to $655,194.33; as so modified, the judgment is affirmed, with costs to the plaintiff, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate amended judgment.

On February 6, 2008, a vehicle operated by the plaintiff was involved in a collision with another vehicle at an intersection in Port Chester. The plaintiff thereafter commenced this action against the driver and the owner of the other vehicle. At the conclusion of the trial on the issue of liability, the Supreme Court denied the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law, and the jury returned a verdict finding that the defendants were 65% at fault in the happening of the accident and the plaintiff was 35% at fault.

During the trial on the issue of damages, the Supreme Court denied the plaintiff's request to redact entries in his hospital records which indicated that he was not using an available seat belt at the time of the accident. The court instructed the jury that it could consider those entries in the hospital records as evidence of the plaintiff's failure to mitigate his injuries. The jury returned a verdict finding that the plaintiff had sustained a total of $1,007,991.28 in damages, consisting of $400,000 for past pain and suffering, $89,825 for lost wages, $68,166.28 for medical expenses, $400,000 for future pain and suffering, and $50,000 for future lost wages. In response to interrogatories appearing on the verdict sheet, the jury further found that the plaintiff was not using a seat belt at the time of the accident, that this contributed to his damages, and that, as a result, the damages should be reduced by $200,000, resulting in a total damages award of $807,991.28. Subsequently, judgment was entered, awarding the plaintiff the principal sum of $525,194.33, representing 65% of the total damages award. The plaintiff appeals, and the defendants cross-appeal, from the judgment.

“To be entitled to judgment as a matter of law pursuant to CPLR 4401, a defendant has the burden of showing that there is no rational process by which the jury could find in favor of the plaintiff and against the moving defendant” (Cicola v. County of Suffolk, 120 A.D.3d 1379, 1381, 993 N.Y.S.2d 131 ; see Ruggiero v. Weth, 122 A.D.3d 828, 828–829, 996 N.Y.S.2d 670 ; Elnakib v. County of Suffolk, 90 A.D.3d 596, 597, 934 N.Y.S.2d 223 ). Contrary to the defendants' contention, there was a rational process by which the jury at the trial on the issue of liability could find that the defendant driver failed to “see that which, through the proper use of senses, should have been seen,” that his negligent conduct contributed to the happening of the accident, and that the defendants were 65% at fault in the happening of the accident (Wilson v. Rosedom, 82 A.D.3d 970, 970, 919 N.Y.S.2d 59 ; see Tapia v. Royal Tours Serv., Inc., 67 A.D.3d 894, 896, 889 N.Y.S.2d 225 ; Cox v. Nunez, 23 A.D.3d 427, 427–428, 805 N.Y.S.2d 604 ). The jury's determination was also supported by a fair interpretation of the evidence and, therefore, was not contrary to the weight of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 ).

The plaintiff contends that the Supreme Court erred in denying his request, made at the outset of the trial on the issue of damages, to redact entries in his hospital records which indicated that he was not wearing a seat belt at the time of the subject accident. A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule only if the entry is germane to the diagnosis or treatment of the patient (see Gunn v. City of New York, 104 A.D.2d 848, 849, 480 N.Y.S.2d 365 ). However, if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is “evidence connecting the party to the entry” (Coker v. Bakkal Foods, Inc., 52 A.D.3d 765, 766, 861 N.Y.S.2d 384 ; see Berrios v. TEG Mgt. Corp., 35 A.D.3d 775, 776, 826 N.Y.S.2d 740 ). At trial, the plaintiff testified that he was using a seat belt at the time of the accident. The hospital records containing the challenged entries clearly indicated that the plaintiff was the source of the information contained therein (see Goodrich v. Watermill Townhouses, 169 Misc.2d 314, 319, 645 N.Y.S.2d 721 [Sup.Ct., Ulster County] ). Accordingly, the challenged entries were properly admitted into evidence.

Although the Supreme Court properly declined to redact the hospital record as requested by the plaintiff, ...