Boehm v. Rosario

Boehm v Rosario (2017 NY Slip Op 07049) Boehm v Rosario 2017 NY Slip Op 07049 Decided on October 6, 2017 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on October 6, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND WINSLOW, JJ. 1027 CA 16-02232 [*1]CHRISTINA M. BOEHM, PLAINTIFF-APPELLANT, vGUISSEPPE G. ROSARIO, ALSO KNOWN AS G.M. ROSARIO-PARRILLA, DEFENDANT-RESPONDENT. VINAL & VINAL, P.C., BUFFALO (JEAN VINAL OF COUNSEL), FOR PLAINTIFF-APPELLANT. HAGELIN SPENCER LLC, BUFFALO (WILLIAM SWIFT OF COUNSEL), FOR DEFENDANT-RESPONDENT. Appeal from an order of the Supreme Court, Erie County (Deborah A. Chimes, J.), entered September 15, 2016. The order denied plaintiff's motion to set aside the jury verdict. It is hereby ORDERED that the order so appealed from is affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the vehicle she was driving collided with a vehicle operated by defendant. After a jury trial, the jury found that both plaintiff and defendant were negligent and apportioned fault, and further found that plaintiff did not sustain a serious injury. Plaintiff appeals from an order denying her posttrial motion to set aside the verdict. Plaintiff contends that she is entitled to a new trial because defense counsel repeatedly made statements to the jury implying that defendant had no insurance. We reject that contention. References to insurance coverage are generally irrelevant to the issues and are improper because of their prejudicial nature (see Leotta v Plessinger, 8 NY2d 449, 461, rearg denied 9 NY2d 688, mot to amend remittitur granted 9 NY2d 686; Rendo v Schermerhorn, 24 AD2d 773, 773; see also Salm v Moses, 13 NY3d 816, 817-818). Contrary to plaintiff's contention, defense counsel's references to defendant as her "client" were not improper, and her statements that defendant should not be held "responsible" for certain medical expenses were in response to plaintiff's testimony and the arguments of plaintiff's counsel. Defense counsel never stated or implied that defendant lacked insurance coverage for the accident or would have to pay out of pocket (cf. Rendo, 24 AD2d at 773). We reject plaintiff's further contention that she is entitled to a new trial based on alleged cumulative error during the trial. Plaintiff never requested that Supreme Court take judicial notice of a certain mathematical computation on speed and distance, and therefore there was no error by the court in failing to take such judicial notice. The court did not abuse its discretion in not allowing redirect examination of plaintiff's treating physician and limiting the duration of the cross-examination of the physician who examined plaintiff on defendant's behalf (see Swatland v Kyle, 130 AD3d 1453, 1454; see generally Feldsberg v Nitschke, 49 NY2d 636, 643, rearg denied 50 NY2d 1059). The court's rulings were based on time constraints; the court ended questioning ...

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