Ortiz v. Variety Poly Bags, Inc.

Appellate Division of the Supreme Court of New York

Ortiz v. Variety Poly Bags, Inc.

19 A.D.3d 239, 797 N.Y.S.2d 70, 2005 N.Y. App. Div. LEXIS 6819

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

DecidedJune 21, 2005

StatusPublished

Cited by1 cases

This text of 19 A.D.3d 239 (Ortiz v. Variety Poly Bags, Inc.) 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

Ortiz v. Variety Poly Bags, Inc., 19 A.D.3d 239, 797 N.Y.S.2d 70, 2005 N.Y. App. Div. LEXIS 6819 (N.Y. Ct. App. 2005).

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Opinion

Judgment, Supreme Court, Bronx County (Anne E. Targum, J.), entered May 13, 2004, which, after a jury verdict in defendant’s favor, dismissed the complaint, unanimously affirmed, without costs.

Any error by the trial court in admitting the written statements taken by the detective who investigated the accident, from the two eyewitnesses who testified at trial, was remedied when the trial court gave the jury a curative instruction explaining that the statements were no longer in evidence, that the detective’s testimony based on the statements was stricken from the record, and that the evidence was to be entirely disregarded during the jury’s deliberations. The curative [240]*240instruction was precise and readily understood. It is thus presumed that the jury understood and followed it (see Martelly v New York City Health & Hosps. Corp., 276 AD2d 373 [2000]). Moreover, it is noted that the jury never viewed the stricken statements.

The court’s charge regarding negligence mirrored New York’s Pattern Jury Instructions and was proper as given. There is no authority to suggest that the more specific charge requested by plaintiff was necessary. Similarly, the court’s charge regarding defendant driver’s duty to exercise due care to avoid colliding with a bicyclist mirrored the statute (see Vehicle and Traffic Law § 1146), and thus was proper as given. We have considered plaintiffs other arguments regarding the. jury charge and find them unavailing.

The trial court’s preclusion of plaintiffs expert witness, an accident reconstructionist, was proper, given that there were two eyewitnesses to the accident who testified at trial. Furthermore, plaintiff failed to demonstrate how the proposed expert testimony would clarify an issue involving professional and technical knowledge beyond the ken of the typical juror (GMAC Commercial Credit v Mitchell-B.J. Ltd., 272 AD2d 51 [2000]). Concur—Mazzarelli, J.E, Friedman, Sullivan, Williams and Gonzalez, JJ.

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Judgment, Supreme Court, Bronx County (Anne E. Targum, J.), entered May 13, 2004, which, after a jury verdict in defendant’s favor, dismissed the complaint, unanimously affirmed, without costs.

Any error by the trial court in admitting the written statements taken by the detective who investigated the accident, from the two eyewitnesses who testified at trial, was remedied when the trial court gave the jury a curative instruction explaining that the statements were no longer in evidence, that the detective’s testimony based on the statements was stricken from the record, and that the evidence was to be entirely disregarded during the jury’s deliberations. The curative [240]*240instruction was precise and readily understood. It is thus presumed that the jury understood and followed it (see Martelly v New York City Health & Hosps. Corp., 276 AD2d 373 [2000]). Moreover, it is noted that the jury never viewed the stricken statements.

The court’s charge regarding negligence mirrored New York’s Pattern Jury Instructions and was proper as given. There is no authority to suggest that the more specific charge requested by plaintiff was necessary. Similarly, the court’s charge regarding defendant driver’s duty to exercise due care to avoid colliding with a bicyclist mirrored the statute (see Vehicle and Traffic Law § 1146), and thus was proper as given. We have considered plaintiffs other arguments regarding the. jury charge and find them unavailing.

The trial court’s preclusion of plaintiffs expert witness, an accident reconstructionist, was proper, given that there were two eyewitnesses to the accident who testified at trial. Furthermore, plaintiff failed to demonstrate how the proposed expert testimony would clarify an issue involving professional and technical knowledge beyond the ken of the typical juror (GMAC Commercial Credit v Mitchell-B.J. Ltd., 272 AD2d 51 [2000]). Concur—Mazzarelli, J.E, Friedman, Sullivan, Williams and Gonzalez, JJ.

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Bluebook (online)

19 A.D.3d 239, 797 N.Y.S.2d 70, 2005 N.Y. App. Div. LEXIS 6819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-variety-poly-bags-inc-nyappdiv-2005.

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