Devito v. Feliciano

84 A.D.3d 645, 924 N.Y.S.2d 330

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2011
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered on or about March 26, 2010, after a jury trial in an action alleging serious injuries sustained in an automobile accident, dismissing the complaint, unanimously affirmed, without costs.

The jury’s finding that the automobile accident was not a substantial factor in bringing about plaintiffs injuries was based upon a fair interpretation of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]). “[I]t is the jury’s function to determine the credibility of witnesses and the weight to be accorded the testimony of experts” (Harding v Noble Taxi Corp., 182 AD2d 365, 370 [1992]). Here, the record demonstrates credibility and reliability issues with respect to the testimony of plaintiffs witnesses. Indeed, the testimony at trial contains inconsistencies relating to the circumstances of the accident, plaintiffs medical history and her subsequent treatment.

The trial court did not err in excluding certain medical records of plaintiff, as they were not properly certified and never given to defendants for inspection prior to trial (see CPLR 3122-a). Nor did the trial court err in declining to provide a missing witness charge since plaintiff did not satisfy the elements that are a prerequisite for receiving the charge (see Getlin v St. Vincent's Hosp. & Med. Ctr. of N.Y., 117 AD2d 707, 708-709 [1986]; NY PJI 1:75, Comment, Caveat 2). Concur — Gonzalez, EJ., Sweeny, Acosta, Freedman and Abdus-Salaam, JJ.