613 N.Y.S.2d 883 | N.Y. App. Div. | 1994
Judgment, Supreme Court, Bronx County (Bernard Burstein, J.), entered June 2, 1993, in favor of plaintiffs and which structured the payment schedule of said verdict pursuant to CPLR article 50-B, unani
The trial court properly exercised its discretion in permitting the rebuttal testimony of plaintiffs’ expert (see, Saleh v Sears, Roebuck & Co., 119 AD2d 652, 653). It was not until after defendants presented the testimony of their driver, who offered technical testimony to demonstrate the impossibility of plaintiffs’ theory of the accident, that it reasonably became apparent to plaintiffs that expert testimony would be necessary. Moreover, said rebuttal testimony did not amount to mere bolstering of plaintiffs’ case (cf., Harvin v New York City Tr. Auth., 198 AD2d 401).
Since the record demonstrates that there were only two mutually exclusive theories of liability presented in this case —either that defendant and third-party plaintiff’s negligence was the proximate cause of the accident, or that the negligence of the hotel and/or plaintiff was the proximate cause of the accident—and since the hotel was not a defendant in the main action, the third-party complaint against the hotel was appropriately dismissed. There was no evidence to support an apportionment of damages in this case between defendants in the main action and the hotel. Indeed, even if the jury had concluded that the proximate cause of the accident was the negligence of the hotel, the complaint would have had to have been dismissed against defendant and third-party plaintiff, and, in turn, against the third-party defendants.
Finally, we find that the award for past and future pain and suffering materially deviates from what would be reasonable compensation under the circumstances (CPLR 5501 [c]). Said award should be reduced to $650,000 for past pain and suffer
