Joseph v. Roger Morris Apartments Corp.

236 A.D.2d 297, 654 N.Y.S.2d 301, 1997 N.Y. App. Div. LEXIS 1412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 1997
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Harold Tompkins, J., and a jury), entered October 6, 1995, awarding plaintiff damages, including $90,000 for past and future pain and suffering, unanimously affirmed, without costs.

We agree with defendant that the trial court improperly precluded the testimony of defendant’s expert radiologist on the basis of 22 NYCRR 202.17, but nevertheless affirm because preclusion would have been proper on the alternative basis of CPLR 3101 (d) (1) (i) (see, Lyall v City of New York, 228 AD2d 566, 567-568, lv denied 88 NY2d 816; Vigilant Ins. Co. v Barnes, 199 AD2d 257). Plaintiff’s failure to assert CPLR 3101 (d) before the trial court does not preclude reliance thereon on appeal. If in fact not part of the trial record, we take judicial notice of the preliminary conference order that directed defendant to provide plaintiff with expert witness information (see, Reed v Federal Ins. Co., 71 NY2d 581, 590, n 5; Matter of Hartman v Joy, 47 AD2d 624, 625). We have considered defendant’s claim that the award for pain and suffering deviates materially from what is reasonable compensation and find it to be without merit. Concur—Sullivan, J. P., Ellerin, Tom and Andrias, JJ.