Kenney v. Amodei

Appellate Division of the Supreme Court of New York

Kenney v. Amodei

119 A.D.2d 1006, 500 N.Y.S.2d 994, 1986 N.Y. App. Div. LEXIS 55944

Appellate Division of the Supreme Court of the State of New York·Decided April 4, 1986·Published·Cited by 3 cases

Opinion

— Judgment unanimously reversed, on the law, without costs, and new trial granted. Memorandum: The trial court erred in receiving, over defendant’s objection, testimony from one of plaintiff’s treating physicians, based on his examination conducted the day before trial commenced, that plaintiff suffered a permanent neck injury. This testimony should have been precluded because plaintiff did not mention this specific injury in her bill of particulars (CPLR 3042 [c]), and did not timely disclose the doctor’s findings as required by this department’s rules (22 NYCRR 1024.25 [c], [e]; Cramer v Toledo Scale Co., 89 AD2d 1059, 1060). Had the doctor’s testimony properly been excluded, plaintiff may not have been able to establish that she suffered a "serious injury” (see, Insurance Law § 5102 [d]; Licari v Elliott, 57 NY2d 230; cf. Mooney v Ovitt, 100 AD2d 702, 704). (Appeal from judgment of Supreme Court, Onondaga County, Sullivan, J. — personal injury.) Present — Denman, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

— Judgment unanimously reversed, on the law, without costs, and new trial granted. Memorandum: The trial court erred in receiving, over defendant’s objection, testimony from one of plaintiff’s treating physicians, based on his examination conducted the day before trial commenced, that plaintiff suffered a permanent neck injury. This testimony should have been precluded because plaintiff did not mention this specific injury in her bill of particulars (CPLR 3042 [c]), and did not timely disclose the doctor’s findings as required by this department’s rules (22 NYCRR 1024.25 [c], [e]; Cramer v Toledo Scale Co., 89 AD2d 1059, 1060). Had the doctor’s testimony properly been excluded, plaintiff may not have been able to establish that she suffered a "serious injury” (see, Insurance Law § 5102 [d]; Licari v Elliott, 57 NY2d 230; cf. Mooney v Ovitt, 100 AD2d 702, 704). (Appeal from judgment of Supreme Court, Onondaga County, Sullivan, J. — personal injury.) Present — Denman, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

Kenney v. Amodei, 119 A.D.2d 1006, 500 N.Y.S.2d 994, 1986 N.Y. App. Div. LEXIS 55944 (N.Y. Ct. App. 1986).

Pincite

119 A.D.2d 1006 (Kenney v. Amodei) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related