Baumis v. General Motors Corp.

106 A.D.2d 789, 484 N.Y.S.2d 185, 1984 N.Y. App. Div. LEXIS 21711

Opinions

Appeal from a judgment of the Supreme Court in favor of defendants, entered May 11, 1983 in Montgomery County, upon a verdict rendered at Trial Term (Crangle, J.).

Plaintiff contends that the trial court erred in refusing to admit into evidence certain rebuttal proof offered by plaintiff at the close of defendants’ case. We disagree.

At trial plaintiff introduced proof, including expert testimony, to establish that decedent died as the result of a fire in a new automobile manufactured by defendant General Motors Corporation (hereafter defendant) and that the fire was caused by design and/or manufacturing defects. Defendant introduced expert proof that (1) the charred remains of the body found in the vehicle showed signs of having been beaten, (2) death occurred before the fire, and (3) the fire was caused by arson. To rebut this proof, plaintiff sought to introduce additional testimony from her expert concerning the cause of the fire. Noting that plaintiff’s expert had previously addressed the possibility of arson, the trial court concluded that plaintiff’s offer of proof provided no new matter for the jury, which was confronted with conflicting expert opinions.

Plaintiff claims that defendant’s proof of arson and homicide related to unpleaded “affirmative defenses” which took plaintiff by surprise and to which she could not respond until after the proof had been presented. Although plaintiff now asserts that arson and homicide were affirmative defenses which should have been pleaded by defendant, no objection was made when defendant offered the proof. The claim of surprise is also belied by the record, for defendant disclosed at a conference some 18 months before the trial that its investigation revealed the possibility of foul play, and plaintiff’s counsel stated in his opening statement to the jury that plaintiff intended to “take the burden” of proving that defendant’s claims of “foul play” were “nonsense”. Plaintiff’s direct case contained expert proof on the question of whether arson or homicide played a role in decedent’s death and, as found by the trial court, plaintiff’s rebuttal evidence, consisting of additional testimony from an expert who had previously testified on the issue, would have added no new matter to the case; nor would it have further enlightened the jury on the issues. At best, it would have tended to corroborate the proof already adduced on plaintiff’s direct case.

Under these circumstances, the trial court did not abuse its discretion when it refused to permit plaintiff to present the rebuttal evidence (see Pieniewski v Benbenek, 56 AD2d 710; Hutchinson v Shaheen, 55 AD2d 833, 834). We also find no abuse of discretion in the trial court’s denial of plaintiff’s motion for a mistrial (see Harris v Village of East Hills, 41 NY2d 446, 451). The judgment should be affirmed.

Judgment affirmed, with costs. Main, J. P., Casey, Yesawich, Jr., and Harvey, JJ., concur.