Livreri v. Berliner

Appellate Division of the Supreme Court of New York

Livreri v. Berliner

123 A.D.2d 670, 507 N.Y.S.2d 41, 1986 N.Y. App. Div. LEXIS 60821

Appellate Division of the Supreme Court of the State of New York·Decided October 14, 1986·Published·Cited by 2 cases

Opinion

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Queens County (LeVine, J.), dated April 15, 1985, which was in favor of the plaintiff and against him, in the principal sum of $95,000, upon a jury verdict.

Ordered that the judgment is affirmed, with costs.

The plaintiffs expert’s opinion testimony was properly admitted because the assumptions upon which a hypothetical question was based were fairly inferable from the plaintiffs [671] testimony and the defendant’s records (see, Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410, 414; Richardson, Evidence § 370 [Prince 10th ed]; see also, 2 Wigmore, Evidence § 682 [Chadbourn rev 1979]). Inasmuch as the element of proximate causation was established through the testimony of the plaintiff’s medical expert, the defendant’s contention that the plaintiff failed to establish a prima facie case is without merit (see, Lipsius v White, 91 AD2d 271, 277). Despite conflicting testimony from the plaintiff’s and the defendant’s experts, the resolution of those conflicts was a matter for the jury (see, Dunaway v Staten Is. Hosp., 122 AD2d 775; Taype v City of New York, 82 AD2d 648, 650-651).

On these facts, we cannot conclude that the verdict was against the weight of the credible evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). Thompson, J. P., Weinstein, Rubin and Spatt, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Queens County (LeVine, J.), dated April 15, 1985, which was in favor of the plaintiff and against him, in the principal sum of $95,000, upon a jury verdict.

Ordered that the judgment is affirmed, with costs.

The plaintiffs expert’s opinion testimony was properly admitted because the assumptions upon which a hypothetical question was based were fairly inferable from the plaintiffs [671] testimony and the defendant’s records (see, Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410, 414; Richardson, Evidence § 370 [Prince 10th ed]; see also, 2 Wigmore, Evidence § 682 [Chadbourn rev 1979]). Inasmuch as the element of proximate causation was established through the testimony of the plaintiff’s medical expert, the defendant’s contention that the plaintiff failed to establish a prima facie case is without merit (see, Lipsius v White, 91 AD2d 271, 277). Despite conflicting testimony from the plaintiff’s and the defendant’s experts, the resolution of those conflicts was a matter for the jury (see, Dunaway v Staten Is. Hosp., 122 AD2d 775; Taype v City of New York, 82 AD2d 648, 650-651).

On these facts, we cannot conclude that the verdict was against the weight of the credible evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). Thompson, J. P., Weinstein, Rubin and Spatt, JJ., concur.

Livreri v. Berliner, 123 A.D.2d 670, 507 N.Y.S.2d 41, 1986 N.Y. App. Div. LEXIS 60821 (N.Y. Ct. App. 1986).

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Opinion

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