Livreri v. Berliner

In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Queens County (LeVine, J.), dated April 15, 1985, which was in favor of the plaintiff and against him, in the principal sum of $95,000, upon a jury verdict. Ordered that the judgment is affirmed, with costs. The plaintiffs expert’s opinion testimony was properly admitted because the assumptions upon which a hypothetical question was based were fairly inferable from the plaintiffs 671 testimony and the defendant’s records (see, Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410, 414; Richardson, Evidence § 370 [Prince 10th ed]; see also, 2 Wigmore, Evidence § 682 [Chadbourn rev 1979]). Inasmuch as the element of proximate causation was established through the testimony of the plaintiff’s medical expert, the defendant’s contention that the plaintiff failed to establish a prima facie case is without merit (see, Lipsius v White, 91 AD2d 271, 277). Despite conflicting testimony from the plaintiff’s and the defendant’s experts, the resolution of those conflicts was a matter for the jury (see, Dunaway v Staten Is. Hosp., 122 AD2d 775; Taype v City of New York, 82 AD2d 648, 650-651). On these facts, we cannot conclude that the verdict was against the weight of the credible evidence (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). Thompson, J. P., Weinstein, Rubin and Spatt, JJ., concur.