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

24
CA 13-00420
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


ANN TOWNE, PLAINTIFF-APPELLANT,
ET AL., PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

DAVID E. BURNS, M.D. AND GENESEE SURGICAL
ASSOCIATES, P.C., DEFENDANTS-RESPONDENTS.


TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (ERIC M. DOLAN OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

BROWN, GRUTTADARO, GAUJEAN & PRATO, LLC, ROCHESTER (JEFFREY S.
ALBANESE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered January 23, 2013. The order denied the motion of
plaintiff Ann Towne to set aside the verdict and for a new trial.

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

     Memorandum: In this medical malpractice action, Ann Towne
(plaintiff) appeals from an order insofar as it denied her motion to
set aside the verdict of no cause of action and for a new trial in the
interest of justice (see CPLR 4404 [a]). We reject plaintiff’s
contention that Supreme Court erred in allowing cross-examination of
her expert regarding an out-of-state conviction of contempt. That
conviction was based upon lies told by the expert to a judge during
the course of the expert’s trial testimony. Although the conviction
was in 1983, “ ‘[c]ommission of perjury or other acts of individual
dishonesty, or untrustworthiness . . . will usually have a very
material relevance, whenever committed’ ” (Donahue v Quikrete Cos.
[appeal No. 2], 19 AD3d 1008, 1009, quoting People v Sandoval, 34 NY2d
371, 377).

     We agree with plaintiff, however, that the court abused its
discretion in curtailing her effort to rehabilitate her expert on
redirect examination by asking him to explain the facts underlying the
contempt conviction (see People v Tait, 234 App Div 433, 439, affd 259
NY 599; Sims v Sims, 75 NY 467, 472-473). We further conclude,
however, that the error is harmless, inasmuch as “[t]he excluded
[testimony] would not ‘have had a substantial influence in bringing
about a different verdict’ ” (Czerniejewski v Stewart-Glapat Corp.,
269 AD2d 772, 773). Thus, the limitations imposed by the court on the
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                                                         CA 13-00420

redirect examination of plaintiff’s expert do not support setting
aside the verdict in the interest of justice (see Butler v County of
Chautauqua, 277 AD2d 964, 964).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
