LUCIAN v. SCHWARTZ

Citation Codes

Equivalent Citations

citation codes

Docket Number

Nos. 2007-05728, 2007-10968.

Attorney(S)

Brand Brand Nomberg Rosenbaum, LLP, New York, N.Y. (Brett J. Nomberg of counsel), for appellants. Westerman, Hamilton, Sheehy, Aydelott Kennan, LLP, White Plains, N.Y. (Christopher P. Keenan and Thomas A. Cullen of counsel), for respondents.

Judges

William F. Mastro
Edward D. Carni
Randall T. Eng

See more information ...

Smart Summary

Factual and Procedural Background

This case arises from a medical malpractice action brought by the plaintiffs against defendants Kenneth S. Schwartz and Vascular Surgical Associates, P.C. The plaintiffs appealed from an order of the Supreme Court, Westchester County, denying their motion pursuant to CPLR 4404(a) to set aside a jury verdict on liability and for a new trial. They also appealed from a judgment entered upon the jury verdict dismissing the complaint against these defendants.

Legal Issues Presented

Whether the trial court erred in permitting the treating neurologist to testify for the defense on injury causation despite lack of prior notice under CPLR 3101(d).
Whether the trial court properly precluded the plaintiffs' expert neurologist’s testimony due to delayed disclosure.
Whether the plaintiffs preserved their claims for a new trial based on defense counsel's references to plaintiffs' medical insurance and alleged improper comments during summation.
Whether the admission of unauthenticated CT-scan films constituted reversible error.
Whether the jury verdict should be set aside and a new trial granted in the interest of justice under CPLR 4404(a).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Aho, 39 NY2d 241, 248	Right of direct appeal terminates with entry of judgment.	Dismissed appeal from intermediate order as right of direct appeal ended with judgment; issues reviewed on appeal from judgment.
Butler v Grimes, 40 AD3d 569, 570	Permitting testimony despite lack of prior notice under CPLR 3101(d).	Upheld trial court's decision to permit treating neurologist’s testimony for defense despite no prior notice.
Malanga v City of New York, 300 AD2d 549	Related to expert testimony and notice requirements.	Supported trial court’s discretion in allowing testimony despite notice issues.
Hunt v Ryzman, 292 AD2d 345, 346	Similar to above on expert testimony and notice.	Reinforced discretion in testimony admission despite notice failure.
Martin v NYRAC, Inc., 258 AD2d 443	Discretion to preclude expert testimony for failure to comply with CPLR 3101(d)(1)(i).	Supported exclusion of plaintiffs’ expert neurologist due to inordinate delay and lack of good cause.
Schwartzberg v Kingsbridge Hgts. Care Ctr, Inc., 28 AD3d 463, 464	Failure to timely disclose expert witness information.	Applied to justify preclusion of expert testimony for untimely disclosure.
Vigilant Ins. Co. v Barnes, 199 AD2d 257	Similar to above on expert disclosure issues.	Supported trial court's discretion to exclude expert testimony for delay.
Lind v City of New York, 270 AD2d 315, 317	Requirement to preserve objections for appellate review.	Found plaintiffs failed to preserve claims related to references to medical insurance and improper summation comments.
Kamen v City of New York, 169 AD2d 705, 706	Preservation of objections for appeal.	Confirmed lack of preservation of plaintiffs’ objections.
Murray v Weisenfeld, 37 AD3d 432, 434	Preservation of objections to summation comments.	Supported dismissal of unpreserved claims about defense summation.
Friedman v Marcus, 32 AD3d 820	Similar to above on preservation of objections.	Applied to affirm lack of preservation for summation comment objections.
Williams v Williams, 226 AD2d 710, 711	Harmless error doctrine regarding admission of evidence.	Found admission of unauthenticated CT-scan films harmless given other evidence.
Gomez v Park Donuts, 249 AD2d 266, 267	Standard for granting new trial in the interest of justice.	Determined no basis to set aside verdict or grant new trial as substantial justice was done.

Court's Reasoning and Analysis

The court first dismissed the appeal from the intermediate order because the right of direct appeal ended with the entry of the judgment, but reviewed all issues on appeal from the judgment. The court found no error in permitting the treating neurologist to testify for the defense despite lack of prior notice under CPLR 3101(d), citing precedent supporting such discretion. Conversely, the court upheld the exclusion of the plaintiffs' expert neurologist testimony due to the plaintiffs' failure to timely disclose the expert's identity, credentials, and testimony subject matter, with no adequate explanation or good cause for delay.

The court held that the plaintiffs failed to preserve claims related to defense counsel’s references to plaintiffs’ medical insurance and comments during summation because they did not request further relief or move for a mistrial. Although the trial court erred in admitting unauthenticated CT-scan films, this error was harmless given the admission of written reports and treating physician testimony regarding those films.

Finally, the court concluded that there was no evidence that substantial justice had not been done, properly denying the plaintiffs' motion to set aside the jury verdict and for a new trial in the interest of justice. All remaining contentions by the plaintiffs were found to be without merit.

Holding and Implications

The court dismissed the appeal from the order, affirmed the judgment in favor of the defendants, and awarded costs to the defendants.

The direct effect of this decision is the final dismissal of the plaintiffs' claims against the defendants Kenneth S. Schwartz and Vascular Surgical Associates, P.C. The ruling does not establish new precedent but affirms the trial court’s discretion in evidentiary and procedural matters, emphasizing the importance of timely expert disclosure and preservation of objections for appellate review.

Show full summary ...

ALFRED LUCIAN et al., Appellants, v. KENNETH S. SCHWARTZ et al., Respondents, et al., Defendant.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants Kenneth S. Schwartz and Vascular Surgical Associates, P.C.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501 [a] [1]).

Contrary to the plaintiffs' contention, the trial court properly permitted the treating neurologist of the plaintiff Alfred Lucian to testify for the defense on the subject of injury causation, notwithstanding a lack of prior notice pursuant to CPLR 3101 (d) ( see Butler v Grimes, 40 AD3d 569, 570; Malanga v City of New York, 300 AD2d 549; Hunt v Ryzman, 292 AD2d 345, 346). The trial court also providently exercised its discretion in precluding the proffered testimony of the plaintiffs' expert neurologist. Although CPLR 3101 (d) (1) (i) does not establish a specific time frame for expert witness disclosure, a trial court has the discretion to preclude expert testimony for the failure to reasonably comply with the statute ( see Martin v NYRAC, Inc., 258 AD2d 443). Here, the plaintiffs failed to provide an adequate explanation or establish good cause for their inordinate delay in disclosing the identity of their expert witness, his credentials, and the specific subject matter of his expected testimony until after the trial had begun ( see Schwartzberg v Kingsbridge Hgts. Care Ctr, Inc., 28 AD3d 463, 464; Vigilant Ins. Co. v Barnes, 199 AD2d 257).

The plaintiffs also claim that they are entitled to a new trial because defense counsel made brief references during the trial to the plaintiffs' medical insurance. The trial court sustained the plaintiffs' objections thereto and admonished defense counsel following those references. Having failed to ask for further relief or move for a mistrial on this ground, the plaintiffs failed to preserve this contention for appellate review ( see Lind v City of New York, 270 AD2d 315, 317; Kamen v City of New York, 169 AD2d 705, 706). The plaintiffs' contentions concerning allegedly improper comments made during the defense summation are also unpreserved, as they never objected to those comments or sought a curative instruction or a mistrial on this ground ( see Murray v Weisenfeld, 37 AD3d 432, 434; Friedman v Marcus, 32 AD3d 820).

The Supreme Court erred in admitting CT-scan films which were not properly authenticated. However, in light of the admission of the written reports concerning the films and the testimony of the treating physician detailing his review of the films during the injured plaintiffs hospitalization, any error in the admission of these films was harmless ( see Williams v Williams, 226 AD2d 710, 711).

The Supreme Court properly denied that branch of the plaintiffs' motion pursuant to CPLR 4404 (a) which was to set aside the jury verdict and for a new trial in the interest of justice, as there was no evidence "that substantial justice has not been done" in this case ( Gomez v Park Donuts, 249 AD2d 266, 267).

The plaintiffs' remaining contentions are without merit.