Tate by McMahon v. Colabello

• Decision Date: 10 February 1983
• Citation: 459 N.Y.S.2d 422,445 N.E.2d 1101,58 N.Y.2d 84
• Parties: , 445 N.E.2d 1101 Liza TATE, an Infant, by Her Mother and Natural Guardian, Susan McMAHON, et al., Respondents, v. Pat V. COLABELLO et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 422

459 N.Y.S.2d 422

58 N.Y.2d 84, 445 N.E.2d 1101

Liza TATE, an Infant, by Her Mother and Natural Guardian, Susan McMAHON, et al., Respondents, v. Pat V. COLABELLO et al., Appellants.

Court of Appeals of New York.

Feb. 10, 1983.

E. Richard Rimmels, Jr., and Donald S. Neumann, Jr., Mineola, for appellants.

Sally Weinraub, New York City, for respondents.

OPINION OF THE COURT

FUCHSBERG, Judge.

This appeal poses questions which commonly recur in the trial of damage issues in personal injury litigation. These arise in the context of a $320,000 jury verdict in favor of 15-year-old Liza Tate, who two years earlier had been struck by defendants' motor vehicle, which allegedly ran a traffic light while she and three other youngsters were crossing a city street.

On defendants' CPLR 4404 motion, the trial court, after reserving decision on a claim of excessiveness alone a expressly declining to reconsider rulings which it had made adversely to the defendants during trial, eventually granted the motion and ordered a new trial in toto. The Appellate Division thereafter modified by reinstating the verdict on liability and directing a new trial as to damages alone unless consent was given, which it was, to reduction of the verdict to $150,000. In so deciding, the court observed that "[n]o cogent reason was given as to why a new trial on liability was necessary" and, concordantly, commented that it also "did not find that the verdict on liability was contrary to the weight of the evidence or that the interest of justice would be served" by disturbing it.

Defendants now pursue this further appeal from the modification as a matter of right under CPLR 5601 (subd. [a], par. [iii]; see Dalrymple v. Shults Chevrolet, 39 N.Y.2d 795, 385 N.Y.S.2d 756, 351 N.E.2d 423). For, while an order of the Appellate Division which reinstates a jury verdict on a weight of evidence question is not reviewable in this court (e.g., Goehle v. Town of Smithtown, 55 N.Y.2d 995, 449 N.Y.S.2d 471, 434 N.E.2d 707), ^* errors of law properly preserved during the course of trial nevertheless may be reviewed (see Gutin v. Mascali & Sons, 11 N.Y.2d 97, 99, 226 N.Y.S.2d 434, 181 N.E.2d 449; Cohen and Karger, Powers of the New York Court of Appeals [rev. ed.], § 148, p. 588).

Turning then to the errors assigned, we initially treat with defendants' argument that the trial court committed reversible error when it admitted what, they insist, was evidence of "a new injury" without plaintiff having first obtained leave of the court to include it in a supplemental bill of particulars (CPLR 3043, subd. [c] ). The "new injury" consisted of an "asymmetrical looking chest". Served some eight months earlier than its supplement, the original bill had listed as permanent, among other things, a dislocation of the spine at the conjunction of the sixth and seventh cervical vertebrae, a displaced, overriding fracture of the midshaft of the right clavicle and resulting shoulder and clavicular "deformation" affecting the thoracic (chest) a spinal areas. Timely served more than 30 days before trial (CPLR 3043, subd. [b] ), in comparison, the supplemental bill, which incorporated an orthopedic surgeon's update, spoke of stiffness and atrophy of the right shoulder, cervical muscle spasm, distortion of the right clavicle from excessive callus (new bone) formation and atrophy, with a consequent one inch lowering of the right shoulder which produced a "permanent cosmetic disfiguration" in the form of an "asymmetrical looking chest".

Reasonably and realistically read, especially in light of the dynamics of maturing injuries, we cannot say that the later, and therefore more definitive, statement of the hardly unanticipatable sequellae of essentially the self-same permanent injuries recited in the earlier bill could have come as a surprise (see Siegel, New York Practice, § 242, p. 297). At most, it expanded on the extent of the continuing disability rather than on the nature of the injuries (see Cardone v. University Hosp., 78 A.D.2d 645, 432 N.Y.S.2d 245). All the more is this so since the service of the supplement was accompanied by plaintiff's proffer of a new physical examination, an offer which the defendants, neither then nor when it was tendered again at the time of trial, ever accepted.

Nor is there any more merit to defendants' contention that a motion for a mistrial should have been granted when plaintiff's counsel, in summation, took the liberty...