        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

101
CA 13-00293
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


OFELIA RODRIGUEZ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARIA I. COLON, DEFENDANT-RESPONDENT.


LOUIS ROSADO, BUFFALO, FOR PLAINTIFF-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Timothy
J. Drury, J.), entered October 15, 2012. The judgment denied the
motion of plaintiff to set aside a jury verdict or for a new trial and
awarded money damages to plaintiff.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: In this personal injury action, plaintiff appeals
from a judgment denying her motion seeking to set aside the jury
verdict in the amount of $10,000 and for a new trial. Plaintiff was a
passenger in two separate motor vehicle accidents occurring on April
26 and August 1, 2007. Defendant was the driver of the vehicle
involved in the April accident and conceded liability, and it was
disclosed during the trial on damages that plaintiff settled her claim
against the driver involved in the August accident. The jury
determined that the injuries sustained by plaintiff in the April
accident were distinguishable from the injuries she sustained in the
August accident, and awarded plaintiff $10,000 for past pain and
suffering only.

     We are unable to review plaintiff’s contention that she was
denied the opportunity to question prospective jurors during voir dire
and was therefore denied her right to a fair trial and an impartial
jury. Voir dire was not transcribed, and plaintiff did not prepare a
statement in lieu of stenographic transcript (see CPLR 5525 [d]). We
conclude that plaintiff, as the appellant, must “suffer the
consequences” of an incomplete appellate record where, as here, there
are conflicting accounts of what occurred during voir dire (Matter of
Santoshia L., 202 AD2d 1027, 1028; see generally Polyfusion Elecs.,
Inc. v AirSep Corp., 30 AD3d 984, 985).

     Contrary to plaintiff’s further contention, “the verdict is based
                                 -2-                           101
                                                         CA 13-00293

on a fair interpretation of the evidence” (Latour v Hayner Hoyt Corp.
[appeal No. 2], 13 AD3d 1147, 1148; see CPLR 4404 [a]; Kuncio v
Millard Fillmore Hosp., 117 AD2d 975, 976, lv denied 68 NY2d 608).
MRI scans of plaintiff’s cervical and lumbar spine taken after each
accident supported the jury’s determination that the injuries
sustained in the April accident were distinguishable from those
sustained in the August accident (cf. Reilly v Fulmer, 9 AD3d 818,
819-820). Furthermore, testimony and medical records presented at the
trial on damages established that plaintiff had low back pain prior to
the April accident, that she had a preexisting degenerative spinal
condition that was exacerbated by her cigarette smoking and obesity,
and that the pain in her neck and back was improving before the August
accident. “Given the conflicting experts’ opinions and the
plaintiff’s subsequent accident[] and other conditions, it cannot be
said that the damages award deviated materially from what would be
reasonable compensation” (Ballas v Occupational & Sports Medicine of
Brookhaven, P.C., 46 AD3d 498, 498, lv dismissed 10 NY3d 803, lv
denied 12 NY3d 702; see CPLR 5501 [c]; Latour, 13 AD3d at 1148-1149).




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
