Rubio v. New York City Transit Authority
Opinion of the Court
The court did not err in limiting the introduction of plaintiffs medical records concerning preexisting conditions not alleged to have been exacerbated or aggravated in the accident where defendant failed to establish relevance (see e.g. Arroyo v City of New York, 171 AD2d 541, 543 [1st Dept 1991]; compare McGlone v Port Auth. of NY. & N.J., 90 AD3d 479 [1st Dept 2011]). Contrary to defendant’s claim, plaintiff did not place his entire pre-accident medical condition at issue by testifying as to his general health.
Defendant’s argument that statements made by plaintiffs counsel during summation warrant a new trial is unpreserved (see Lucian v Schwartz, 55 AD3d 687, 689 [2d Dept 2008], lv denied 12 NY3d 703 [2009]). In any event, the statements complained of constituted either fair comment on the evidence or a response to defendant’s arguments with respect to witness
Plaintiff, who was 62 years old at the time of the accident and had a preexisting biceps tear, suffered a rotator cuff tear, for which he underwent an unsuccessful surgical repair, resulting in a permanent reduction in strength and range of motion. Under the circumstances, we find that the awards for past and future pain and suffering deviate materially from what would be reasonable compensation to the extent indicated (CPLR 5501 [c]; compare Bernstein v Red Apple Supermarkets, 227 AD2d 264 [1st Dept 1996], lv dismissed 89 NY2d 961 [1997]; Guillory v Nautilus Real Estate, 208 AD2d 336 [1st Dept 1995], appeal dismissed and lv denied 86 NY2d 881 [1995]).
We have considered defendant’s remaining arguments and find them unavailing. Concur — Andrias, J.P, Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.