FISHKIN v. MASSRE

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the defendant on the issue of damages. Contrary to the plaintiff's contention, despite the defendant's failure to strictly comply with CPLR 3101(d)(1)(i), under the circumstances of this case, the trial court providently exercised its discretion in allowing the defendant's examining physician to testify that the injuries to the plaintiff's right shoulder and elbow, and the resulting surgeries, were not proximately caused by the subject accident (see, Manes v. Manes, 277 A.D.2d 359, 361; Law v. Moskowitz, 279 A.D.2d 844, 846; Hansel v. Lamb, 257 A.D.2d 795, 796). Under the facts of this case, the plaintiff could not claim surprise or prejudice as a result of the challenged testimony, as "the issue of causation was implicit on the question of damages" (McLamb v. Metropolitan Suburban Bus Auth., 139 A.D.2d 572, 573; see, Pola v. Nycz, 281 A.D.2d 839; Moreno v. Roberts, 161 A.D.2d 1099, 1101).

FRIEDMANN, J.P., FLORIO, SMITH and COZIER, JJ., concur.