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Jackson v. Montefiore Medical Center

Supreme Court of New York, First Department

September 26, 2013

Sallie Jackson, Plaintiff-Appellant,
v.
Montefiore Medical Center, et al., Defendants-Respondents.

Warren J. Willinger, Mt. Kisco, for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Elizabeth J. Sandonato of counsel), for respondents.

Sweeny, J.P., DeGrasse, Manzanet-Daniels, Clark, JJ.

Judgment, Supreme Court, Bronx County (Kibbie F. Payne, J.), entered June 27, 2012, upon a jury trial as to liability, in defendants' favor, and bringing up for review an order, same court (Barry Salman, J.), entered on or about December 14, 2011, which granted defendants' motion for a bifurcated trial, unanimously affirmed, without costs. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment. Appeal from order, same court (Barry Salman, J.), entered on or about December 14, 2011, which granted defendants' motion to, among other things, quash a subpoena seeking the production of surgical hardware, unanimously dismissed, without costs, as academic.

This action seeks recovery for damages sustained by plaintiff when, while she was standing at a desk at defendant Montefiore Medical Center, defendant Georgette McToy bumped into her, causing her to fall. The court properly found that bifurcation was warranted, as the questions of liability and damages are distinct and severable issues and plaintiff's injuries are not probative in determining how the accident occurred (see Gogatz v New York City Transit Authority, 288 A.D.2d 115 [1st Dept 2001]).

The trial court, which is vested with "broad authority to control the courtroom" (Campbell v Rogers & Wells, 218 A.D.2d 576, 579 [1st Dept 1995]), did not commit reversible error in limiting plaintiff's use of leading questions upon direct examination of adverse witnesses. The witnesses had not displayed any hostility or evasiveness and the information sought could have been elicited through non-leading questions (see Matter of Ostrander v Ostrander, 280 A.D.2d 793 [3d Dept 2001]). The court's exercise of control over the timing and manner of the use of deposition testimony for impeachment purposes was within its discretion. Moreover, a review of the record does not "demonstrate that the court was biased or that other conduct of the court deprived [plaintiff] of a fair trial" (Peralta v Grenadier Realty Corp., 84 A.D.3d 486, 487 [1st Dept 2011]).

Given the foregoing determinations, plaintiff's appeal of the order quashing the subpoena, which relates solely to damages, is rendered academic. In any event, the court properly exercised its discretion in quashing the subpoena duces tecum, as plaintiff failed to seek production of the hardware during discovery (see Orr v Yun, 74 A.D.3d 473 [1st Dept 2010]), production was neither material nor relevant to the action, and plaintiff was free to obtain the hardware from the manufacturer or a medical supplier.

We have considered plaintiff's remaining arguments, including those involving the verdict sheet, judicial notice, and the court's instructions to the jury, and find them unavailing.


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