Tate-Mitros v. MTA N.Y.C. Transit

• Decision Date: 10 November 2016
• Citation: Tate-Mitros v. MTA N.Y.C. Transit, 144 A.D.3d 454, 41 N.Y.S.3d 214, 2016 N.Y. Slip Op. 7394 (N.Y. App. Div. 2016)
• Parties: William TATE–MITROS, Plaintiff–Appellant, v. MTA NEW YORK CITY TRANSIT, also known as New York City Transit Authority, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 454

41 N.Y.S.3d 214

2016 N.Y. Slip Op. 07394

William TATE–MITROS, Plaintiff–Appellant,

v.MTA NEW YORK CITY TRANSIT, also known as New York City Transit Authority, et al., Defendants–Respondents.

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

Nov. 10, 2016.

Theodore H. Friedman, New York, for appellant.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for respondents.

SWEENY, J.P., MANZANET–DANIELS, FEINMAN, KAPNICK, WEBBER, JJ.

Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered November 24, 2015, dismissing the complaint upon a jury verdict in defendants' favor, unanimously reversed, on the law and in the interest of justice, without costs, the judgment vacated and the matter remanded for a new trial.

The jury found that the rear tire of an MTA articulated bus had not run over plaintiff's right foot, causing a crush injury, after he was caused to fall on the sidewalk by the bus.On appeal plaintiff argues that defendants' medical expert disclosure notice under CPLR 3101(d)(1) was insufficiently detailed and did not allow him to prepare a complete case, and that the court incorrectly precluded the testimony of his medical expert on rebuttal, and unnecessarily limited the rebuttal testimony of his expert engineer.

The CPLR 3101(d) disclosure notice for Dr. Robert Kurtz, a specialist in surgical critical care and trauma, indicated that he would testify “within a reasonable degree of medical certainty that the plaintiff's injury was inflicted by something less massive than the bus in question,” and that in his opinion, “it would be unlikely that these injuries had occurred as stated by the plaintiff.”Dr. Kurtz testified that in his experience, a heavy vehicle rolling over any part of the anatomy leaves tire tread marks, which plaintiff's foot did not have.The doctor opined that for the accident to have happened as plaintiff claimed, his ankle would have been at the very least twisted unnaturally, the long bones of the feet, the metatarsals, would have been broken in addition to the toes, and there would have been significantly more soft tissue trauma from the weight of the bus.Therefore, Dr. Kurtz opined plaintiff was not injured by a bus.On cross-examination, Dr. Kurtz conceded that he was not an accident reconstructionist and did not have the professional expertise to state that plaintiff could not have fallen and been injured as claimed.

The CPLR 3101(d)(1) notice for Joseph Covelli, an MTA supervisor and an expert in accident and incident investigations stated that he would testify “within a reasonable degree of engineering certainty that the bus could not have mounted the sidewalk as the plaintiff stated”; his opinion was that “the front and center of an articulated M15 bus would have had to mount the front tires [sic] of a sidewalk before the rear tires would be able to mount the same sidewalk.”His testimony was consistent with his notice, although he also opined that if the entire bus had mounted the sidewalk, its right-side mirror would have been knocked off by the trees planted in the sidewalk.On cross-examination, he admitted that he had not measured the distance of the trees from the curb, and did not know where on the sidewalk plaintiff claimed he was standing, and could not actually determine if the bus would have been driven deeply enough on the sidewalk to have been damaged by the trees.

After the defense rested, plaintiff's attorney sought permission to call two rebuttal witnesses.He submitted a CPLR 3101(d)(1) notice for an expert in biomechanical medicine, arguing that the disclosure notice for Dr. Kurtz had provided no indication that the doctor's opinion was based on the lack of tread marks or injury to the metatarsals and ankle.He argued that the notice's insufficiency had not allowed him to prepare an expert witness to address these issues directly.His proposed expert would demonstrate, by use of an anatomical model of a foot, that plaintiff's foot could have been positioned after he fell in such a manner that when the bus wheel rolled over his foot, his ankle and upper foot would not have been injured as Dr. Kurtz claimed.The court denied his request based on the timing of the notice and its reasoning that no rebuttal was needed.

The court granted permission for...