Nuzzo v. Castellano

Appellate Division of the Supreme Court of New York

Nuzzo v. Castellano

254 A.D.2d 265, 678 N.Y.S.2d 118, 1998 N.Y. App. Div. LEXIS 10121

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

DecidedOctober 5, 1998

StatusPublished

Cited by8 cases

This text of 254 A.D.2d 265 (Nuzzo v. Castellano) 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

Nuzzo v. Castellano, 254 A.D.2d 265, 678 N.Y.S.2d 118, 1998 N.Y. App. Div. LEXIS 10121 (N.Y. Ct. App. 1998).

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Opinion

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (G. Aronin, J.), entered August 6, 1997, which, upon a jury verdict finding them to be 75% at fault in the happening of the occurrence, is [266]*266in favor of the plaintiff and against them in the principal sum of $313,521.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages only.

The Supreme Court committed reversible error by allowing a plaintiff’s expert, who had not physically examined the plaintiff, to testify as to a diagnosis of the plaintiff’s back injury based, for the most part, on magnetic resonance imaging (hereinafter MRI) films which were not in evidence (see, Hambsch v New York City Tr. Auth., 63 NY2d 723). Contrary to the plaintiff’s contention, the MRI was not used merely to confirm the expert’s opinion formed out of information from other sources but instead was used as a basis for her opinion (cf., Pegg v Shahin, 237 AD2d 271; Karayianakis v L & E Grommery, 141 AD2d 610). Accordingly, a new trial on the issue of damages is warranted (see, Whalen v Avis Rent A Car Sys., 138 Misc 2d 959). Mangano, P. J., Sullivan, Florio and McGinity, JJ., concur.

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In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Kings County (G. Aronin, J.), entered August 6, 1997, which, upon a jury verdict finding them to be 75% at fault in the happening of the occurrence, is [266]*266in favor of the plaintiff and against them in the principal sum of $313,521.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the issue of damages only.

The Supreme Court committed reversible error by allowing a plaintiff’s expert, who had not physically examined the plaintiff, to testify as to a diagnosis of the plaintiff’s back injury based, for the most part, on magnetic resonance imaging (hereinafter MRI) films which were not in evidence (see, Hambsch v New York City Tr. Auth., 63 NY2d 723). Contrary to the plaintiff’s contention, the MRI was not used merely to confirm the expert’s opinion formed out of information from other sources but instead was used as a basis for her opinion (cf., Pegg v Shahin, 237 AD2d 271; Karayianakis v L & E Grommery, 141 AD2d 610). Accordingly, a new trial on the issue of damages is warranted (see, Whalen v Avis Rent A Car Sys., 138 Misc 2d 959). Mangano, P. J., Sullivan, Florio and McGinity, JJ., concur.

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Bluebook (online)

254 A.D.2d 265, 678 N.Y.S.2d 118, 1998 N.Y. App. Div. LEXIS 10121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nuzzo-v-castellano-nyappdiv-1998.

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