Simone v. McNamara, 5351.

• Decision Date: 26 February 2009
• Docket Number: 5351A.,5351.
• Citation: 873 N.Y.S.2d 621,59 A.D.3d 349,2009 NY Slip Op 01406
• Parties: DENNIS SIMONE et al., Appellants, v. GERALD McNAMARA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

59 A.D.3d 349

873 N.Y.S.2d 621

2009 NY Slip Op 01406

DENNIS SIMONE et al., Appellants, v. GERALD McNAMARA et al., Respondents.

5351.

5351A.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided February 26, 2009.

Amended judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered October 18, 2007, upon a jury verdict, in defendants' favor, unanimously affirmed, without costs. Appeal from prior judgment, same court and Justice, entered June 1, 2007, unanimously dismissed, without costs, as superseded by appeal from amended judgment.

We need not determine whether the trial court erred in refusing to redact that portion of the record from Sharon Hospital, in the "History of Present Illness" section, that states plaintiff Dennis Simone "jumped off his truck landing on hard turf/ice and rotated his ankle," before admitting the record in evidence. Nor need we determine whether plaintiff waived his contention that the trial court erred by belatedly seeking to strike the testimony concerning the record and seeking a curative instruction.

We find, in any event, that any error was harmless as a matter of law (see CPLR 2002). The statement was cumulative of other testimony adduced at trial tending to support defendants' contention that the injured plaintiff fell on the grassy area rather than on the gravel courtyard/parking area (see Mashley v Kerr, 63 AD2d 1084, 1085 [1978]). Whether he fell on the grassy area or on the gravel courtyard/parking area was not dispositive of defendants' negligence. Accordingly, there is no reason to believe the result would not have been the same if the evidence had not been improperly admitted (see Barracato v Camp Bauman Buses, 217 AD2d 677 [1995]).

We reject plaintiffs' contention that the court committed reversible error by including in the verdict sheet a special interrogatory asking the jury whether the injured party had slipped and fallen on ice in the grassy area or in the gravel courtyard/parking area. The trial court has broad discretion in deciding whether to submit interrogatories to the jury (see CPLR 4111 [c]; Lunn v County of Nassau, 115 AD2d 457, 458 [1985]). The court believed that the special interrogatory asking, at the outset, whether the accident occurred in the grassy area or in the gravel courtyard/parking area, would help the jury focus on the foreseeability and reasonableness elements that followed in the next interrogatory as to whether defendant...