Frank v. McCutcheon

Appellate Division of the Supreme Court of New York

Frank v. McCutcheon

29 A.D.3d 470, 816 N.Y.S.2d 680

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

DecidedMay 25, 2006

StatusPublished

Cited by1 cases

This text of 29 A.D.3d 470 (Frank v. McCutcheon) 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

Frank v. McCutcheon, 29 A.D.3d 470, 816 N.Y.S.2d 680 (N.Y. Ct. App. 2006).

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Opinion

Judgment, Supreme Court, Bronx County (Dianne Renwick, J.), entered on or about January 18, 2005, on a jury verdict in favor of defendants Eddie McCutcheon, Wheels, Inc. and Laboratory Corp., unanimously affirmed, without costs.

Plaintiff was properly impeached by her prior conviction, the underlying facts, and her violation of probation (CPLR 4513; Sansevere v United Parcel Serv., 181 AD2d 521 [1992]; Vernon v New York City Health & Hosps. Corp., 167 AD2d 252 [1990]). Affidavits submitted by physicians on plaintiffs behalf in connection with prior litigation, which asserted facts at variance with her present trial testimony, were properly introduced as adopted admissions. The court properly gave a missing witness instruction as to one of the physicians who had provided such an affidavit, the testimony of whom would have been at variance with and not cumulative to that of her testifying physician, and also would have provided material evidence regarding her preexisting condition. We reject the contention that the jury could not have reached its verdict on any fair interpretation of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195 [2004]), and accordingly find no basis to disturb the court’s denial of plaintiffs motion to set aside the verdict. Concur— Sullivan, J.P., Williams, Gonzalez, Catterson and McGuire, JJ.

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Judgment, Supreme Court, Bronx County (Dianne Renwick, J.), entered on or about January 18, 2005, on a jury verdict in favor of defendants Eddie McCutcheon, Wheels, Inc. and Laboratory Corp., unanimously affirmed, without costs.

Plaintiff was properly impeached by her prior conviction, the underlying facts, and her violation of probation (CPLR 4513; Sansevere v United Parcel Serv., 181 AD2d 521 [1992]; Vernon v New York City Health & Hosps. Corp., 167 AD2d 252 [1990]). Affidavits submitted by physicians on plaintiffs behalf in connection with prior litigation, which asserted facts at variance with her present trial testimony, were properly introduced as adopted admissions. The court properly gave a missing witness instruction as to one of the physicians who had provided such an affidavit, the testimony of whom would have been at variance with and not cumulative to that of her testifying physician, and also would have provided material evidence regarding her preexisting condition. We reject the contention that the jury could not have reached its verdict on any fair interpretation of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195 [2004]), and accordingly find no basis to disturb the court’s denial of plaintiffs motion to set aside the verdict. Concur— Sullivan, J.P., Williams, Gonzalez, Catterson and McGuire, JJ.

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Bluebook (online)

29 A.D.3d 470, 816 N.Y.S.2d 680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-mccutcheon-nyappdiv-2006.

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