Gregory v. Mulligan

266 A.D.2d 344, 698 N.Y.S.2d 309, 1999 N.Y. App. Div. LEXIS 11511

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Putnam County (Hickman, J.), entered September 22, 1998, which, upon a jury verdict in favor of the defendant and against him and upon the denial of his motion for a new trial, dismissed the complaint.

Ordered that the judgment is reversed, on the law, the motion is granted, and the matter is remitted to the Supreme Court, Putnam County, for a new trial, with costs to abide the event.

The Supreme Court erred in permitting the defendant’s examining physician to testify that based on his review of a bone scan immediately prior to trial, the plaintiff had not suffered a fracture. The defendant had earlier served that physician’s medical report in compliance with 22 NYCRR 202.17 (h) and CPLR 3101 (d), and the report stated “[f]rom the records it is apparent that [plaintiff] had a fracture”. Thus, his contradictory testimony at trial surprised and prejudiced the plaintiff, as the existence of a fracture had not previously been disputed (see, Kirschhoffer v Van Dyke, 173 AD2d 7; Knight v Long Is. Coll. Hosp., 106 AD2d 371). Since the defen dant failed to make the requisite showing of good cause for the admission of this contradictory testimony, a new trial is warranted under the circumstances (see, 22 NYCRR 202.17 [h]; CPLR 3101 [d]; Baden v Peterson Trust, 190 AD2d 705, 706). Bracken, J. P., S. Miller, Krausman and H. Miller, JJ., concur.