TOWNE, ANN v. BURNS, M.D., DAVID E.

Appellate Division of the Supreme Court of New York

TOWNE, ANN v. BURNS, M.D., DAVID E.

125 A.D.3d 1471, 3 N.Y.S.3d 844

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

DecidedFebruary 13, 2015

DocketCA 13-00420

StatusPublished

This text of 125 A.D.3d 1471 (TOWNE, ANN v. BURNS, M.D., DAVID E.) 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

TOWNE, ANN v. BURNS, M.D., DAVID E., 125 A.D.3d 1471, 3 N.Y.S.3d 844 (N.Y. Ct. App. 2015).

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Opinion

Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered January 23, 2013. The order denied the motion of plaintiff Ann Towne to set aside the verdict and for a new trial.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this medical malpractice action, Ann Towne (plaintiff) appeals from an order insofar as it denied her motion to set aside the verdict of no cause of action and for a new trial in the interest of justice (see CPLR 4404 [a]). We reject plaintiffs contention that Supreme Court erred in allowing cross-examination of her expert regarding an out-of-state conviction of contempt. That conviction was based upon lies told by the expert to a judge during the course of the expert’s trial testimony. Although the conviction was in 1983, “ ‘[clommission of perjury or other acts of individual dishonesty, or untrustworthiness . . . will usually have a very material relevance, whenever committed’ ” (Donahue v Quikrete Cos. [appeal No. 2], 19 AD3d 1008, 1009 [2005], quoting People v Sandoval, 34 NY2d 371, 377 [1974]).

We agree with plaintiff, however, that the court abused its discretion in curtailing her effort to rehabilitate her expert on redirect examination by asking him to explain the facts underlying the contempt conviction (see People v Tait, 234 App Div 433, 439 [1932], affd 259 NY 599 [1932]; Sims v Sims, 75 NY 466, 472-473 [1878]). We further conclude, however, that the error is harmless, inasmuch as “[t]he excluded [testimony] would not ‘have had a substantial influence in bringing about a *1472 different verdict’ ” (Czerniejewski v Stewart-Glapat Corp., 269 AD2d 772, 773 [2000]). Thus, the limitations imposed by the court on the redirect examination of plaintiffs expert do not support setting aside the verdict in the interest of justice (see Butler v County of Chautauqua, 277 AD2d 964, 964 [2000]). Present — Scudder, P.J., Centra, Lindley, Sconiers and DeJoseph, JJ.

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Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), entered January 23, 2013. The order denied the motion of plaintiff Ann Towne to set aside the verdict and for a new trial.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this medical malpractice action, Ann Towne (plaintiff) appeals from an order insofar as it denied her motion to set aside the verdict of no cause of action and for a new trial in the interest of justice (see CPLR 4404 [a]). We reject plaintiffs contention that Supreme Court erred in allowing cross-examination of her expert regarding an out-of-state conviction of contempt. That conviction was based upon lies told by the expert to a judge during the course of the expert’s trial testimony. Although the conviction was in 1983, “ ‘[clommission of perjury or other acts of individual dishonesty, or untrustworthiness . . . will usually have a very material relevance, whenever committed’ ” (Donahue v Quikrete Cos. [appeal No. 2], 19 AD3d 1008, 1009 [2005], quoting People v Sandoval, 34 NY2d 371, 377 [1974]).

We agree with plaintiff, however, that the court abused its discretion in curtailing her effort to rehabilitate her expert on redirect examination by asking him to explain the facts underlying the contempt conviction (see People v Tait, 234 App Div 433, 439 [1932], affd 259 NY 599 [1932]; Sims v Sims, 75 NY 466, 472-473 [1878]). We further conclude, however, that the error is harmless, inasmuch as “[t]he excluded [testimony] would not ‘have had a substantial influence in bringing about a *1472 different verdict’ ” (Czerniejewski v Stewart-Glapat Corp., 269 AD2d 772, 773 [2000]). Thus, the limitations imposed by the court on the redirect examination of plaintiffs expert do not support setting aside the verdict in the interest of justice (see Butler v County of Chautauqua, 277 AD2d 964, 964 [2000]). Present — Scudder, P.J., Centra, Lindley, Sconiers and DeJoseph, JJ.

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125 A.D.3d 1471, 3 N.Y.S.3d 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/towne-ann-v-burns-md-david-e-nyappdiv-2015.

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