O'Brien v. Barretta

*331In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Schulman, J.), entered February 6, 2002, as, upon a jury verdict on the issue of liability finding the defendant Maria Barretta 40% at fault and the plaintiff 60% at fault in the happening of the accident, and upon a separate jury verdict on the issue of damages, is in favor of the plaintiff and against the defendants in the principal sum of $603,778.40 ($64,104 [40% of $160,260] for past loss of earnings, $126,714.40 [40% of $316,786] for future loss of earnings, $2,160 [40% of $5,400] for past household services, $10,800 [40% of $27,000] for future household services, $160,000 [40% of $400,000] for past pain and suffering, and $240,000 [40% of $600,000] for future pain and suffering) and (2) from an order of the same court dated May 6, 2002, which denied their motion pursuant to CPLR 4404 (a) to set aside the jury verdict on the issue of damages and for a new trial thereon, and the plaintiff cross-appeals, as limited by her brief, from so much of the judgment as, upon an order of the same court dated December 17, 2001, denying her motion pursuant to CPLR 4404, inter alia, to set aside the jury verdict on liability, in effect, was based upon the jury verdict finding her to be 60% at fault in the happening of the accident.

Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is granted, so much of the judgment as awarded damages is vacated, and a new trial is granted on the issue of damages; and it is further,

Ordered that the appeal from the judgment is dismissed as academic, without costs or disbursements; and it is further,

Ordered that the judgment is affirmed as cross-appealed from, without costs or disbursements.

A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129, 134 [1985]). Moreover, the fact-finding function of the jury and its determination of issues of credibility are accorded great deference (see Murphy v Estate of Vece, 173 AD2d 445 [1991]; Salazar v Fisher, 147 AD2d 470, 471-472 [1989]). The jury finding that the plaintiff was 60% at fault and the defendant Maria Barretta was 40% at fault in the happening of *332the accident is consistent with a fair interpretation of the evidence and any alleged errors in the liability trial do not require reversal. Consequently, the Supreme Court properly denied the plaintiffs motion to set aside the verdict on liability (see Salazar v Fisher, supra).

We remit the matter for a new trial on damages. Where a judge participates to an unwarranted extent in the cross-examination of a witness, or where a judge’s cross-examination of a witness hints at prejudice, as happened here when the defendants’ expert medical witness testified, the interests of justice require a new trial (see Mantuano v Mehale, 258 AD2d 566, 567 [1999]; Gerichten v Ruiz, 80 AD2d 578 [1981]).

Furthermore, the Supreme Court erred in failing to give a missing witness charge with respect to Dr. Frank J. Cammisa, Jr. The defendants established their entitlement to such a charge (see People v Keen, 94 NY2d 533, 539 [2000]; Chandler v Flynn, 111 AD2d 300 [1985]), in response to which the plaintiff failed to meet her burden of demonstrating that Dr. Cammisa was unavailable or not under her control, or that his testimony would be cumulative (see Price v City of New York, 258 AD2d 635, 636 [1999]; Adkins v Queens Van-Plan, 293 AD2d 503 [2002]).

In addition, the plaintiffs bill of particulars should have been amended to reflect her claim for future loss of earnings.

The parties’ remaining contentions either are without merit or academic in light of our determination. Altman, J.E, Mc-Ginity and Mastro, JJ., concur.

concurs in the result, with the following.memorandum: I agree that the liability verdict should not be disturbed and there must be a new trial on damages based upon the trial court’s conduct during the cross-examination of the defendants’ medical expert.

However, in my view the trial court properly denied a missing witness instruction with respect to the surgeon Dr. Frank J. Cammisa, Jr., on the ground that his testimony would have been cumulative. Further, since the defendants were fully aware of the plaintiffs claim for future lost earnings which flowed immediately and directly from the injuries outlined in the bill of particulars, the trial court did not err in permitting testimony as to future lost earnings.

Dr. Cammisa’s certified medical records of his surgery and postoperative treatment of the plaintiff were admitted in evidence at the trial upon stipulation of the parties. Those medical records were referred to by the defendants on cross-examination *333of the plaintiffs medical expert, who acknowledged that the surgery performed by Dr. Cammisa was beneficial and, as a result, she no longer suffered from radicular symptoms. Further in summation, the defense counsel noted that Dr. Cammisa’s records stated that subsequent to the surgery, the plaintiff’s complaints of extreme lower back pain and “pain going down the legs resolved 100 percent.” Since the testimony that Dr. Cammisa might be expected to give was already in evidence through the records and through the testimony of the plaintiffs medical expert, his testimony would have been cumulative (see Kane v Linsky, 156 AD2d 333 [1989]; Rojas v Greyhound Lines, 254 AD2d 188 [1998]; Jellema v 66 W. 84th St. Owners Corp., 248 AD2d 117 [1998]; cf. Chandler v Flynn, 111 AD2d 300, 302 [1985] [missing doctor’s report marked for identification but not in evidence]).

With respect to the plaintiffs claim for future lost earnings, the original verified complaint alleged that the plaintiff “will continue to suffer pain and agony in mind and body and is unable to attend to her duties.” The verified bill of particulars fully described the plaintiffs injuries, stated that those injuries were permanent, and further stated that she continued to be incapacitated from work as a registered nurse as a result of the accident.

At the time of her deposition in January 2000, the plaintiff had returned to work. However, in April 2000 Dr. Cammisa determined that the plaintiff was unable to work, on the ground that she continued to suffer lower back pain and intermittent pain in the posterior knee and lateral calf. The defendants contend that since the plaintiff was working at the time of her deposition, her claim for future lost earnings came as a surprise. However, the defendants received a copy of the plaintiff’s expert’s report with respect to future lost earnings months before the trial on damages and were granted an adjournment to give them an opportunity to retain their own expert. Accordingly, the defendants’ claim of unfair surprise is disingenuous and the failure to formally amend the bill of particulars to include an explicit claim for “future lost earnings” is not significant (see Reed v City of New York, 304 AD2d 1 [2003], lv denied 100 NY2d 503 [2003]; Pines v Muss Dev. Co., 172 AD2d 600 [1991]).