Zivkovic v. Grossman

203 A.D.2d 76, 610 N.Y.S.2d 478

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 7, 1994
• Status: Published

Opinion

—Order and amended judgment, Supreme Court, Bronx County (Barry Salman, J.), entered on or about February 3, 1992 and February 25, 1993, respectively, which inter alia, denied in part defendants’ post-jury trial motions to set aside the verdict and for a new trial, and reduced the verdict for future pain and suffering to $500,000 and which directed an award in accordance with CPLR article 50-B, unanimously affirmed, without costs.

With respect to defendants’ request for a missing witness charge applicable to several physicians who treated plaintiff for his injuries but who did not testify at this automobile accident trial, defendants failed for the most part to preserve this issue since they never sought that relief as to five of the seven pertinent doctors. In any event, we note that such physicians’ testimony would merely have been cumulative (see, Dukes v Rotem, 191 AD2d 35, 39, appeal dismissed 82 NY2d 886).

While defendants complain that a vocational rehabilitative therapist was permitted to testify, the trial court’s charge properly limited the use of that testimony to the area of the witness’s competence.

We hold that the jury’s finding of proximate cause was sufficiently supported by the evidence. We also find that by reducing the damage award for future pain and suffering, the trial court correctly assessed the value of the injuries.

We have considered the remaining arguments and find them to be without merit. Concur — Carro, J. P., Wallach, Asch, Nardelli and Williams, JJ.