Balsz v. A & T Bus Co.

252 A.D.2d 458, 675 N.Y.S.2d 604, 1998 N.Y. App. Div. LEXIS 8416

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 23, 1998
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Norman Ryp, J., and a jury), entered October 17, 1997, insofar as appealed from, in favor of plaintiff and against defendant-appellant in the principal amount of $1,070,865, unanimously affirmed, without costs.

Defendant’s argument that the trial court erred in permitting plaintiff to use hearsay medical reports to bolster the testimony of her medical expert was not preserved by objection on that specific ground (see, Gunnarson v State of New York, 95 AD2d 797, 798), and in any event is without merit, since the hearsay contained in these reports was not the primary basis for plaintiff’s expert’s opinion (cf, O’Shea v Sarro, 106 AD2d 435, 437). Nor is there merit to the related argument with respect to plaintiff’s cross-examination of defendant’s expert, who had been asked to comment on these very same reports in his direct examination. Defendant’s argument that it was deprived of a fair trial by plaintiff’s summation was not preserved by a motion for a mistrial, or by specific objections to most of the comments in question, and where there were objections, they were sustained with appropriate curative instructions. In any event, the summation did not create a climate of hostility that so obscured the issues as to have made the trial unfair (see, Rohring v City of Niagara Falls, 192 AD2d 228, 230-231, affd 84 NY2d 60). Also unpreserved is defendant’s claim of error with respect to the court’s charge (see, McCummings v New York City Tr. Auth., 177 AD2d 24, 31-32, affd 81 NY2d 923, cert denied 510 US 991), and there is no fundamental error warranting discretionary review of this issue. The finding of a permanent injury within the meaning of Insurance Law § 5102 (d) is not against the weight of the evidence (see, Scott v Yurkewecz, 234 AD2d 673), and conflicts in the expert testimony in this regard do not avail defendant (see, DiLauro v Consolidated Edison Co., 200 AD2d 485; Niles v Shue Roofing Co., 244 AD2d 820). We have considered defendant’s remaining arguments and find them to be without merit. Concur — Milonas, J. P., Nardelli, Wallach and Andrias, JJ.