Paulino v. Marchelletta

216 A.D.2d 446, 628 N.Y.S.2d 541, 1995 N.Y. App. Div. LEXIS 6482

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (O’Brien, J.), dated September 2, 1993, which, upon a jury verdict in their favor, did not award them any damages.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs’ contention, the trial court did not improvidently exercise its discretion by denying them a continuance to secure the presence of an expert witness (see, Le Jeunne v Baker, 182 AD2d 969; Dunleavy v Samuel, 177 AD2d 540; Balogh v H.R.B. Caterers, 88 AD2d 136). As noted by the trial court, the alleged scheduling problem was of the plaintiffs’ own making.

The trial court properly expunged from the record a medical report since a proper foundation for its admission was never established (see, CPLR 4518 [a]; 58 NY Jur 2d, Evidence and Witnesses, §§ 456-463).

The plaintiffs’ remaining contentions are either unpreserved for appellate review or without merit. O’Brien, J. P., Ritter, Copertino and Krausman, JJ., concur.