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

961
CA 11-00036
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GORSKI, AND MARTOCHE, JJ.


KELVIN SEAWRIGHT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

OMAR M. CROOKS AND JOE A. RAMBO, JR.,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


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

CELLINO & BARNES, P.C., ROCHESTER (RICHARD P. AMICO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered September 22, 2010 in a personal injury
action. The judgment awarded plaintiff money damages upon a jury
verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, defendants’ post-trial
motion is granted, the verdict is set aside, and a new trial is
granted on the issues of serious injury, proximate cause and damages.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained while a passenger in a vehicle that
rear-ended another vehicle. The vehicle in which plaintiff was a
passenger was operated by defendant Omar M. Crooks and owned by
defendant Joe A. Rambo, Jr. Negligence was not at issue inasmuch as
defendants stipulated that Crooks was solely responsible for the
accident, and the matter proceeded to a jury trial on the issues of
serious injury, proximate cause and damages. The jury found that
plaintiff sustained a significant limitation of use of his cervical
spine as a result of the accident and awarded him damages in the
amount of $85,000 for past lost earnings; $750,000 for past pain and
suffering; and $3,000,000 for future pain and suffering over 30.9
years. Defendants thereafter moved to set aside the verdict
contending, inter alia, that the jury’s verdict with respect to
damages deviated materially from what would be reasonable compensation
based on the evidence adduced at trial (see CPLR 5501 [c]). Supreme
Court denied the post-trial motion.

     Defendants contend on appeal, as they did in their post-trial
motion, that the court erred in permitting plaintiff’s treating
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                                                         CA 11-00036

practitioners to testify concerning the findings of nontestifying
medical professionals who conducted independent medical examinations
and the contents of their reports. Plaintiff, in his brief, does not
contend that the testimony was properly admitted but, rather, contends
only that any error in the admission of the testimony is harmless. We
agree with defendants that the testimony was improperly admitted (see
Matter of State of New York v Fox, 79 AD3d 1782, 1783; Elshaarawy v U-
Haul Co. of Miss., 72 AD3d 878, 882; Ewanciw v Atlas, 65 AD3d 1077,
1078; see generally Hinlicky v Dreyfuss, 6 NY3d 636, 648) and, because
we cannot conclude that the jury verdict would have been the same
without the admission of the improper testimony, we cannot agree with
plaintiff that the error is harmless (see Wang v 161 Hudson, LLC, 60
AD3d 668, 669; cf. Ewanciw, 65 AD3d at 1078-1079).

     Based on our determination, we do not address defendants’
remaining contentions.




Entered:   September 30, 2011                   Patricia L. Morgan
                                                Clerk of the Court
