Connors v. Sowa

251 A.D.2d 989, 674 N.Y.S.2d 544

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly exercised its discretion “in the interests of justice and upon a showing of good cause” (22 NYCRR 202.17 [h]) in allowing plaintiffs treating physician to testify despite plaintiff’s failure to provide defendants with a medical report from him. Defendants had been provided with the report of plaintiffs treating physician to the no-fault insurance carrier, as well as his medical records and the records of all other physicians upon which he relied. Defendants conducted two physical examinations of plaintiff and did not complain until trial about the failure to provide the report (see, Freeman v Kirkland, 184 AD2d 331, 332; McDougald v Garber, 135 AD2d 80, 94, mod on other grounds 73 NY2d 246; cf., Kelly v Tarnowski, 213 AD2d 1054).

The court also properly permitted the testimony of two physicians concerning the permanency of plaintiffs injuries. Plaintiff alleged permanency in her bill of particulars, and thus defendants were neither surprised nor prejudiced by that testimony {see, Serpe v Eyris Prods., 243 AD2d 375). Finally, the verdict does not differ materially from what would be reasonable compensation (see, CPLR 5501 [c]). (Appeals from Judgment of Supreme Court, Erie County, LaMendola, J.— Negligence.) Present — Green, J. P., Wisner, Pigott, Jr., Balio and Fallon, JJ.