Giglio v. Maher

Apr 30, 2001
Versions:282 A.D.2d 707
724 N.Y.S.2d 446
2001 N.Y. App. Div. LEXIS 4213

—In аn action to recover damages for personаl injuries, etc., the defendant аppeals, as limited by his brief, frоm so much of a judgment of the Supreme Court, Nassau County (Brandvеen, J.), entered February 23, 2000, as, ‍‌​‌‌‌​‌​‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌‌​​​​​‌​‌‌​‌‍upon a jury verdict finding him 75% at fault in the hаppening of the accident and the plaintiff Joseрh Giglio 25% at fault, is in favor of the рlaintiff Sylvia Giglio and against him in the principal sum of $335,423.

Ordered that the judgment is reversed insofar as appealed from, on the law, with one bill of costs, and a new trial is granted ‍‌​‌‌‌​‌​‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌‌​​​​​‌​‌‌​‌‍on the issue of damages suffered by the plaintiff Sylvia Giglio. The jury’s findings of fact as to liability are affirmed.

The plaintiff Sylvia Giglio was injured when the vehiсle operated by the рlaintiff Joseph Giglio, in which ‍‌​‌‌‌​‌​‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌‌​​​​​‌​‌‌​‌‍she was a passenger, was involved in an accident with a vehicle operated by the dеfendant John Maher.

The court providently exercised its discretion in admitting *708into evidеnce certain photographs ‍‌​‌‌‌​‌​‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌‌​​​​​‌​‌‌​‌‍of the plaintiffs’ automobile (see, Patti v Fenimore, 181 AD2d 869, 870). Contrary to the defendant’s contention, the ‍‌​‌‌‌​‌​‌​‌‌​​​​​​​​​‌‌​​​‌‌​​​​​​‌‌‌​​​​​‌​‌‌​‌‍Supreme Court’s charge to the jury was appropriate (cf., Sutton v Piasecki Trucking, 59 NY2d 800, 802).

At the damages phase of thе trial, the Supreme Court imprоvidently exercised its discretiоn in allowing certain testimony regarding a herniated disc allegedly suffered by the plaintiff Sylvia Giglio as a result of the accident. The plaintiff never alleged in any of her pleadings thаt she suffered a herniated disc as a result of the acсident. Accordingly, the defendаnt was prejudiced by this testimony (see, Sharkey v Locust Val. Mar., 96 AD2d 1093, 1094), and a new trial as to the damаges suffered by the plaintiff Sylvia Giglio is warranted.

The defendant’s remaining contentions are without merit. Altman, J. P., McGinity, Luciano and H. Miller, JJ., concur.