rdd Doc 880 Filed 10/20/14 Entered 10/24/14 13:21:22 Main Document Pg 1 of 2

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13-22840-rdd Doc 880-1 Filed 10/20/14 Entered 10/24/14 13:21:22 Notice of Objection and PROPOSED Order Pg 1 of 5

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--- -=-- 13-22840-rdd Doc 880-3 Filed 10/20/14 Entered 10/24/14 13:21:22 Law Research Re: Same Injury Pg 1 of 3 880 N.Y.S.2d 16, 62 A.D.3d 528, Smith v. Vohrer, (N.Y.A.lJ. I Dept. 2009) Page 1 *16 880 N.Y.S.2d 16 62 A.D.3d 528, 2009 N.Y. Slip Op. 3935 Supreme C,ourt, Appellate Division, First Department, New York. Deborafl Anne SMITH, Plaintiff Respondent, v. Clifford C. VOHRER, et al., De endants-appellants, Daniel So~omayor, et al., Defendants. May 19, 2009. Background: Motorist who, inter alia, tore meniscus in auto:nobile accident sought to recover damages for personal injuries from other driver involved. The S preme Court, Bronx County, Mark Friedlander, J., ati er jury trial, denied two defendants' motion to set ; side verdict and enter judgment notwithstanding v ~ rdict (JNOV) or grant new trial, and the next day denied two other defendants' motion to set aside verdict. Deh ndants appealed. Holdings: The Supreme Court, Appellate Division, held that: (I) motorist, >rovided sufficient evidence she sustained "serious injury" under No-Fault Law, and surgeon's testimojiy that further treatment after surgery was not necessary provided sufficient explanation of gap in treatment t send case to jury; (2) jury reasqnably concluded that defendant's speeding through prowded intersection was main cause of accident; (3) plaintiffs single passing reference to letters from insurance compan;es, adduced by defendant's counsel, did not require mi strial; (4) surgeon's passing reference to possible future surgery did not re uire new trial; (5) defendant was not prejudiced by charge of aggravation of existing injury, despite fact it was not submitted at charging conference; (<:i) award of $435,000 for multiple tears of meniscu did not deviate frc n reasonable compensation; and! (7) jury did no;; have to find on evidence submitted that plaintiffs injµry would have been mitigated had she worn her seatl:;"elt. ' - Affirmed. West Headnotes [l] Automobiles <P25 l. l 9 48A ---- 48A V Injuries from Operc..don, or Use of Highway ~ i 48A V(D) Effect of No Fault Sta{1tes 48Ak25 I. l 9 Evidence and fact questions; instructions. Injured motorist provided sufficie, evidence from her treating surgeon, including evidence that she suffered torn meniscus as result of automobile accident, to : ustain claim of serious «1jury under No Fault Law, and surgeon's testimo;ty that further treatment aft{.: surgery was not necessary provided sufficient explanation of gap in treatment to send case to jury. McKinney's Insurance Law 5102(d). [2] Automobiles <P245(59) 48A ---- 48A V Injuries from Open. l.on, or Use of Highway 48A V(B) Actions 48Ak245 Questions for Jury 48Ak245(50) Proximate Cause c,f Injury 48Ak245(59) Speed and control Jury reasonably concluded that defrf1dant's speeding through crowded intersection was main cause of accident given evidence that other cars in intersection had to make way for defendant, and that car he hit was pushed one block in direction defend? i' was traveling,. [3] Trial «: => 127 388 --- 388. Arguments and Condu.;t of Counsel 388kl I Statements as to Facts, Comments, and Arguments 388k127 Reference to protecf, n of party by insurance or other indemnity. [See headnote text below] [3] Trial<P133.l 388 ---- I 388V Arguments and Condu ct of Counsel 388k133 Action of Court., 2013 Thomson Reuters. No claim to original U.S. Govt. works.

13-22840-rdd Doc 880-3 Filed 10/20/14 Entered 10/24/14 13:21:22 Law Research Re: Same Injury Pg 2 of 3 880 N.Y.S.2d 16, 62 A.D.3d 528, Smith v. Vohrer, (N.Y.A.D. 1 Dept. 2009) Page 2 388kl33. l!vi general; duty of court. Plaintiffs single passing reference to letters from insurance companies, adduced by defendant's counsel, did not require mi?trial of personal injury action. [4] New Trial <990 275 ---- 275Il Grounds 275Il(G) Surprise, Accident, Inadvertence, or Mistake 275k90 Testimony and conduct of witness. Surgeon's passing reference to possible future surgery did not require new trial in personal injury action stemming from automobile accident as it was not intentionally elicited, and, in context, was reference to future functional limitations of injury. [5] Appeal and Error <P 1064.1 (8) 30 ---- 30XVI r eview 30XVI(J) Harmless Error 30XVI(J) 18 Instructions 30kl064 Prejudicial Effect 30kl064. I ln General 30kl064.1(2) Particular Cases 30kl 064.1(8) Negligence and torts in general. I Defendant in personal injury action was not prejudiced by charge on aggravation of existing injury, despite fact that it was not submitted at charging conference; issue of aggravation was in bill of particulars and was argued by defendant's own expert, and moreover defendant failed to ask for supplemental summations. [6] Damages<P127.28 115 ---- l l 5VIl Amount Awarded 1l5VIl(B) Injuries to the Person l 15k127.25 Leg, Foot, Knee, and Hip Injuries l l 5kl27.28 Fractures, sprains, and connective tissue injuries. Award of $435,000 to automobile accident victim for multiple tears of the meniscus did not deviate from reasonable compensation. [7] Damages ~z:> 185( 1) 115 ---- l l 5IX Evidence I 11Sk183 Weight and Sufficiency l 15kl85 Personal Injuries and Physical Suffering l l 5k 185( 1) In general. In awarding damages to motorist who was injured in automobile accident, jury did not have to find on evidence submitted that motorist's inj ury would have been mitigated had she worn seat belt.. *17 Costello, Shea & Gaffney LLP, New York (Steven E. Garry of counsel), for appejlants. Kim l. McHale & Associates, New York (John C. Naccarato of counsel), for respondent. ANDRJAS, J.P., SAXE, SWEENY, NARDELLI, FREEDMAN, JJ. 162 A.D.3d 529] Order, Supreme Court, Bronx County (Mark Friedlander, J.), enterea April 9, 2008, which, after a jury trial, denied the motion pursuant to CPLR 4404 of defendants Clifford C. Vohrer and Lease Plan USA to set aside the verdict and enter j udgment notwithstanding the verdict, or, in the alternative, to grant a new trial, and order, same court and Justice, entered April 10, 2008, which, after a jury trial, denied the motion, pursuant to CPLR 4404 of defendants Sotomayor and La Manada Auto Corp. to set aside the verdict, unanimously affirmed, without costs. [1][2] Plaintiff provided sufficient evidence from her treating surgeon, which included e.jidence that she suffered a tom meniscus as a result of the accident, to sustain a claim of serious injury under Insurance Law 5102(d) (see Noriega v. Sauerhaft, 5 A.D.3d 121, 122, 771 N.Y.S.2d 895 [2004] ). Moreover, the surgeon's testimony that further treatment after the surgery was not necessary provided a sufficient explanation of the gap in treatment to send the case to the jury (Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278 [2005] ). Given the evidence that other cars in the intersection had to make way for defendant, and that the car he hit was pushed a block in the direction defendant was traveling, the jury reasonably concluded that defendant's speeding through a crowded intersection was the main cause of the accident (Gomez v. 192 E. 15lst St. Assoc., L.P., 26 A.D.3d 276, 810 N.Y.S.2d 51 [2006] ). *18. [3][4] Plaintiffs single passing reference to letters from insurance companies, adduced by defendant's counsel, did not require a mistrial (see Siegfried v. Siegfried, 123 A.D.2d 621, 622, 507 2013 Thomson Reuters. No claim to original U.S. Govt. works.

13-22840-rdd Doc 880-3 Filed 10/20/14 Entered 10/24/14 13:21:22 Law Research Re: Same Injury Pg 3 of 3 880 N.Y.S.2d 16, 62 A.D.3d 528, Smith v. Vohrer, (N.Y.A.D. I Dept. 2009) Page3 N.Y.S.2d 20 [1986) ). While it would have been preferable for plaintiff to disclose the report of the final examination by her surgeon (who testified at trial), in light of the other discovery defendant had, it was not necessary to preclude the testimony, nor was defendant deprived of meaningful cross-examination (see Mendola v. Richmond 08/GYN Assocs., 191 Misc.2d 699, 701, 744 N.Y.S.2d 637 [2002) ). Nor did the surgeon's passing 'reference to possible future surgery require a new trial, as it was not intentionally elicited, and, in context, was a reference to the future functional limitations of the injury (see Shehata v. Sushiden Am., Inc., 190 A.D.2d 620, 594 N.Y.S.2d 7 [ 1993) ). [5] Defendant was not prejudiced by the charge on aggravation of exjsting injury, despite the fact that it was not submitted at the charging conference. The issue of aggravation was in the bill of particulars, and was argued by defendant's own expert. Moreover, defendant failed to ask for supplemental summations ( see Afghani v. City of New York, 227 A.D.2d 305, 643 N.Y.S.2d 333 [1996)).. [6][7] 162 A.D.3d 530] The award of $435,000 for multiple tears of the meniscus did not deviate from reasonable compensation (see Feliciano v. Ford Motor Credit Co., 28 A.D.3d 221, 812 N.Y.'5.2d 508 [2006) ). Nor did the jury have to find on the evidence submitted that had plaintiff worn a seat belt, her injury would have been mitigated (see Berk,v. Schenck, 122 A.D.2d 823, 825, 505 N.Y.S.2d 894 [1986) ).. 2013 Thomson Reuters. No claim to original U.S. Govt. works.