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Lemoine v. Steinway Fitness Group, LLC

Supreme Court of New York, Second Department

May 22, 2013

Yvan Lemoine, respondent,
v.
Steinway Fitness Group, LLC, et al., appellants. Index No. 29340/09

Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford and Meredith A. Renquin of counsel), for appellants.

Mesterman Law, PLLC, Brooklyn, N.Y. (Lawrence B. Lame of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Queens County (Nahman, J.), entered December 22, 2011, which, upon, inter alia, a jury verdict awarding the plaintiff damages in the principal sums of $20, 000 for past pain and suffering, $140, 000 for future pain and suffering, and $5, 000 for past medical expenditures, is in favor of the plaintiff and against them in the principal sum of $165, 000.

ORDERED that the judgment is affirmed, with costs.

At trial, the Supreme Court improperly excluded from evidence, on relevancy grounds, certain comments the plaintiff posted on a webpage. Those comments were relevant, since they tended to disprove a disputed material fact (see People v Scarola, 71 N.Y.2d 769, 777; Ando v Woodberry, 8 N.Y.2d 165, 167). However, the defendants failed to establish that those comments were admissible as "declaration[s] against interest, " the only basis on which the defendants sought to have them admitted into evidence (Basile v Huntington Util. Fuel Corp., 60 A.D.2d 616, 617). The defendants' contention that the comments were admissible as prior inconsistent statements is improperly raised for the first time on appeal (see Louis v Knowles, 50 A.D.3d 646, 648). The defendants' remaining challenges to the court's evidentiary rulings are without merit, as the proffered evidence was properly excluded as unduly prejudicial, cumulative of other evidence, or pursuant to CPLR 3101(i) for the failure to disclose it (see Zegarelli v Hughes, 3 N.Y.3d 64, 68-69; Abbott v New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 591).

The jury award for future pain and suffering was not contrary to the weight of the evidence, as it was supported by a fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 N.Y.2d 744). Nor did the award for future pain and suffering deviate materially from what would be reasonable compensation (see Ellis v Emerson, 57 A.D.3d 1435, 1436-1437; Kithcart v Mason, 51 A.D.3d 1162, 1164-1165; Van Nostrand v Froehlich, 18 A.D.3d 539).

DILLON, J.P., CHAMBERS, AUSTIN and ROMAN, JJ., concur.


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