Davis v. Bradford

Appellate Division of the Supreme Court of New York

Davis v. Bradford

226 A.D.2d 670, 642 N.Y.S.2d 48, 1996 N.Y. App. Div. LEXIS 4669

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1996

StatusPublished

Cited by6 cases

This text of 226 A.D.2d 670 (Davis v. Bradford) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. Bradford, 226 A.D.2d 670, 642 N.Y.S.2d 48, 1996 N.Y. App. Div. LEXIS 4669 (N.Y. Ct. App. 1996).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered February 1,1995, which upon a jury verdict, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

While we agree with the plaintiff that the defendants should have been precluded from eliciting expert testimony regarding the plaintiffs alleged nonuse of the lap seat belt in the car in which she was a passenger (see, Siegfried v Siegfried, 123 AD2d 621), admission of the testimony was harmless. Evidence pertaining to a plaintiffs nonuse of a seat belt goes to the issue of mitigation of damages (see, DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236; Curry v Moser, 89 AD2d 1). If the defendant is unable to show that the seat belt would have prevented some of the plaintiffs injuries, the trial court should not submit the issue to the jury (see, Spier v Barker, 35 NY2d 444; Dowling v Dowling, 138 AD2d 345). At bar, the issue was not submitted to the jury. Nor was evidence of the plaintiffs use or nonuse of the lap seat belt relevant to the issue determined by the jury, i.e., whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102. Rosenblatt, J. P., Miller, O’Brien and McGinity, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered February 1,1995, which upon a jury verdict, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

While we agree with the plaintiff that the defendants should have been precluded from eliciting expert testimony regarding the plaintiffs alleged nonuse of the lap seat belt in the car in which she was a passenger (see, Siegfried v Siegfried, 123 AD2d 621), admission of the testimony was harmless. Evidence pertaining to a plaintiffs nonuse of a seat belt goes to the issue of mitigation of damages (see, DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236; Curry v Moser, 89 AD2d 1). If the defendant is unable to show that the seat belt would have prevented some of the plaintiffs injuries, the trial court should not submit the issue to the jury (see, Spier v Barker, 35 NY2d 444; Dowling v Dowling, 138 AD2d 345). At bar, the issue was not submitted to the jury. Nor was evidence of the plaintiffs use or nonuse of the lap seat belt relevant to the issue determined by the jury, i.e., whether the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102. Rosenblatt, J. P., Miller, O’Brien and McGinity, JJ., concur.

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Bluebook (online)

226 A.D.2d 670, 642 N.Y.S.2d 48, 1996 N.Y. App. Div. LEXIS 4669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-bradford-nyappdiv-1996.

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