Marshall v. Handler

Judgment, Supreme Court, Bronx County (Joseph Giamboi, J., and a jury), entered on or about June 21, 1996, awarding plaintiff the principal sum of $150,000 for past and future pain and suffering, unanimously affirmed, without costs.

The testimony of plaintiff’s rebuttal witness was properly admitted for purposes of impeachment since it was not collateral but related to the hostility of defendants’ witness (see, Badr v Hogan, 75 NY2d 629, 635). While a small portion of this witness’s testimony concerned notice of the defective condition claimed by plaintiff and should have been adduced in her *159case-in-chief (see, Republic of Croatia v Trustee of Marquess of Northhampton, 203 AD2d 167, 169, lv denied 84 NY2d 805), and notice of this surprise witness and her testimony was not provided as required by the pretrial conference order, there was no resulting prejudice to a substantial right. Nor did the trial court err in not charging comparative negligence absent evidence tending to show that plaintiff had negligently exited her tub. It was not plaintiffs burden to prove freedom from negligence by providing evidence of her cautionary measures. The award does not deviate materially from what is reasonable compensation under the circumstances. Concur—Milonas, J. P., Ellerin, Wallach and Nardelli, JJ.