& RAMOS, BUFFALO (JOSHUA I. RAMOS OF COUNSEL), FOR
SHELTON LIPTAK NOWAK LLP, BUFFALO (AARON M. ADOFF OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND
from a judgment of the Supreme Court, Erie County (John A.
Michalek, J.), entered November 20, 2015. The judgment
dismissed the complaint upon a jury verdict in favor of
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Plaintiffs commenced this action seeking damages for injuries
sustained by Monica Harris (plaintiff) when the vehicle that
she was driving was rear-ended by a vehicle that was owned
and operated by defendant. A jury subsequently returned a
verdict in favor of defendant upon determining that plaintiff
did not sustain a serious injury under any of the four
categories in Insurance Law § 5102 (d) alleged by
plaintiffs. Supreme Court thereafter denied plaintiffs'
motion to set aside the verdict based on juror misconduct and
as against the weight of the evidence. We affirm.
address first plaintiffs' contentions concerning the
court's allegedly erroneous rulings at trial that
contributed to the jury's verdict that plaintiff did not
sustain a serious injury. Contrary to plaintiffs'
contention, the court properly limited the testimony of one
of plaintiff's treating physicians. "CPLR 3101 (d)
(1) applies only to experts retained to give opinion
testimony at trial, and not to treating physicians, other
medical providers, or other fact witnesses" (Rook v
60 Key Ctr., 239 A.D.2d 926, 927 [4th Dept 1997]).
" Where... a plaintiff's intended expert medical
witness is a treating physician whose records and reports
have been fully disclosed..., a failure to serve a CPLR 3101
(d) notice regarding that doctor does not warrant preclusion
of that expert's testimony on causation, since the
defendant has sufficient notice of the proposed testimony to
negate any claim of surprise or prejudice' "
(Hamer v City of New York, 106 A.D.3d 504, 509 [1st
Dept 2013]). Here, one of plaintiff's treating physicians
did not provide any expert disclosure, and during trial he
indicated that, in addition to being a medical doctor, he
received a Ph.D. in biomechanical engineering and he often
relies on his engineering background in his medical practice.
Subsequently, that treating physician was asked some
questions pertaining to biomechanics, and specifically was
asked about the amount of force needed to cause a lumbar
injury. We conclude that defendant's objections to that
line of questioning were properly sustained inasmuch as
defendant did not receive sufficient notice that the treating
physician relied on his engineering background to support his
opinions and conclusions about plaintiff's injuries
(see generally id.). Indeed, plaintiffs made no
attempt in response to defendant's objections to point to
any medical records or other documentation that would
establish that defendant had such notice.
to plaintiffs' further contention, even assuming,
arguendo, that the court erred in admitting plaintiff's
uncertified medical records in evidence, we conclude that the
error is harmless inasmuch as those records were never
published to the jury or provided to the jury during
deliberations. Moreover, the records amount to only eight
pages and include, inter alia, general references to
pre-accident back pain, which was an issue addressed by both
parties during trial (see CPLR 2002).
contend that the court erred in admitting in evidence
photographs of plaintiff's and defendant's vehicles.
Plaintiffs' contention with respect to the photographs of
defendant's vehicle is raised for the first time on
appeal and thus is not properly before us (see Ciesinski
v Town of Aurora, 202 A.D.2d 984, 985 [4th Dept 1994]).
We reject plaintiffs' contention with respect to the
photographs of plaintiff's vehicle inasmuch as it is well
established that "[p]hotographs showing no damage to a
plaintiff's vehicle are admissible to impeach a
plaintiff's credibility on the issue whether the accident
caused the alleged injuries" (Tout v Zsiros, 49
A.D.3d 1296, 1297 [4th Dept 2008], lv denied 10
N.Y.3d 713 ). Furthermore, "even when liability is
not at issue, proof as to the happening of an accident is
probative and admissible as it describes the force of an
impact or other incident that would help in determining the
nature or extent of injuries and thus relate to the question
of damages' " (Anderson v Dainack, 39
A.D.3d 1065, 1066 [3d Dept 2007]). Here, we conclude that the
court did not abuse its discretion in allowing the defense to
use the photographs to impeach plaintiff's credibility
with "evidence indicating that her vehicle sustained
minimal physical damage, if any" (Torres v
Esaian, 5 A.D.3d 670, 671 [2d Dept 2004]).
reject plaintiffs' contention that the court erred in
refusing to set aside the verdict on the ground of juror
misconduct based upon an affidavit from plaintiffs'
counsel that contained hearsay statements made by the jury
foreperson. " [A]bsent exceptional circumstances, juror
affidavits may not be used to attack a jury verdict'
" (Herbst v Marshall, 89 A.D.3d 1403, 1404 [4th
Dept 2011]), and neither may affidavits from counsel that
simply recite the hearsay statements of a juror (see
id.). Plaintiffs' contention that the statements of
the foreperson fall under the excited utterance exception to
the hearsay rule is raised for the first time on appeal and
thus is not properly before us (see Ciesinski, 202
A.D.2d at 985). Furthermore, contrary to plaintiffs'
contention, the trial record is "devoid of evidence
indicating the existence of [substantial] juror
confusion" (Wylder v Viccari, 138 A.D.2d 482,
484 [2d Dept 1988]; see Young Mee Oh v Koon, 140
A.D.3d 861, 862 [2d Dept 2016]; Lopez v Kenmore-Tonawanda
Sch. Dist., 275 A.D.2d 894, 896 [4th Dept 2000]).
reject plaintiffs' contention that the court erred in
failing to set aside the verdict as against the weight of the
evidence. It is well established that " [a] verdict
rendered in favor of a defendant may be successfully
challenged as against the weight of the evidence only when
the evidence so preponderated in favor of the plaintiff that
it could not have been reached on any fair interpretation of
the evidence' " (Sauter v Calabretta, 103
A.D.3d 1220, 1220 [4th Dept 2013]). "That determination
is addressed to the sound discretion of the trial court, but
if the verdict is one that reasonable persons could have
rendered after receiving conflicting evidence, the court
should not substitute its judgment for that of the jury"
(Ruddock v Happell, 307 A.D.2d 719, 720 [4th Dept
2003]; see Todd v PLSIII, LLC-We Care, 87 A.D.3d
1376, 1377 [4th Dept 2011]). Here, even assuming, arguendo,
that plaintiffs established a prima facie case of serious
injury, we conclude that "the jury nevertheless was
entitled to ...