Tirado v. 2188 Realty Ltd.

216 A.D.2d 14, 627 N.Y.S.2d 364, 1995 N.Y. App. Div. LEXIS 5883

Opinion

Judgment, Supreme Court, Bronx County (Hansel McGee, J.), entered May 3, 1993, which, upon a jury’s verdict, awarded judgment for defendant, unanimously affirmed, without costs.

Plaintiff claimed that his injuries were the result of plaster which fell from the ceiling of an apartment in defendant’s building, resulting in injuries to his neck. However, the proof at trial demonstrated that the injury most likely was not caused as plaintiff claimed, and thus the jury verdict was well based.

Contrary to plaintiff’s contention, he was not denied a fair trial. Dr. Dutta was properly allowed to testify as to the manner in which the injuries were sustained since this doctor was not only the treating physician, but also had been a medical examiner. Accordingly, his opinion was based on facts in the record and his own personal observation and therefore was properly received (see, Hambseh v New York City Tr. Auth., 63 NY2d 723, 725). Further, the hospital records which contained references to drug and alcohol use were admitted on plaintiff’s direct case and such references were necessary for the treatment of plaintiff, who required anesthesia for an operation (CPLR 4518).

We have considered plaintiff’s claims that the trial court was biased and that the defense counsel’s summation comments were improper and find them to be without merit. Concur— Rosenberger, J. P., Ellerin, Ross, Williams and Tom, JJ.