Sullivan v. DRA Imaging, P.C.

34 A.D.3d 371, 824 N.Y.S.2d 636

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Nicholas Figueroa, J.), entered April 6, 2005, which denied plaintiffs motion to set aside the jury verdict in favor of defendants as against the weight of the evidence, unanimously affirmed, without costs.

The jury’s findings that plaintiffs injuries are not causally related to the accident required resolution of conflicting expert testimony and attendant credibility determinations, and is supported by a fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]; Watts v State of New York, 25 AD3d 324 [2006]; Torricelli v Pisacano, 9 AD3d 291 [2004], lv denied 3 NY3d 612 [2004]). While defendants’ neurologist’s reference to certain findings in an unproduced 1991 paper by the American Academy of Neurology was impermissible hearsay that should have been disallowed, the error was rendered harmless by the neurologist’s testimony, on cross-examination, that the paper was “oüt-of-date” and under reconsideration by the Academy. We note that the neurologist’s opinion with respect to plaintiffs brain injury was based predominantly on his own examination and testing of plaintiff, and that his reference to the 1991 paper was to explain why he, unlike plaintiffs neurological expert, did not use a EET scan study to evaluate plaintiffs claimed brain trauma. We have considered plaintiffs remaining contentions and find them without merit. Concur—Mazzarelli, J.E, Friedman, Nardelli, Gonzalez and Catterson, JJ.