Iasello v. Frank

Jan 5, 1999
Versions:257 A.D.2d 362
683 N.Y.S.2d 49
1999 N.Y. App. Div. LEXIS 3

—Judgment, Supreme Court, Bronx County (Kenneth Thompson, Jr., J., and a jury), entered August 21, 1997, inter alia, awarding plaintiffs damages for past pain and suffering and future chiropractic services, unanimously modified, on the law and the facts, to vacate the award for future chiropractic services, and otherwise affirmed, without costs.

*363Plaintiffs physician and chiropractor were properly permitted to testify concerning their recent examinations of plaintiff even though reports of such examinations of plaintiff had not been served on defendant, where the physician’s testimony described no new injuries or claims but merely the consequences of the injuries described in previously served medical reports (see, Taylor v Daniels, 244 AD2d 176). However, the award for future chiropractic services should be vacated, where plaintiffs’ bill of particulars did not allege a need therefor (cf., Zapata v City of New York, 96 AD2d 779, appeal dismissed 60 NY2d 860), and the proof thereof was first adduced only on plaintiffs’ rebuttal case when the chiropractor was called for no apparent reason other than avoidance of a missing witness charge. The verdict sheet viewed in the context of the charge as a whole (see, Plunkett v Emergency Med. Serv., 234 AD2d 162), was not misleading or confusing on the issue of proximate cause. Concur—Rosenberger, J. P., Nardelli, Wallach and Rubin, JJ.