Porter v. Shapiro

[795] The liability of the defendants for the injuries suffered by the plaintiffs was established at trial and the defendants do not contest that finding on appeal. The judgment must be reversed, however, and a new trial ordered on the issue of damages, since the trial court admitted evidence on disc injuries suffered by the plaintiff Herbert Porter and of loss of sexual relations with respect to the plaintiff Phyllis Porter’s loss of consortium claim, even though neither item was among the elements of damages specified in the plaintiffs’ bill of particulars, and there is no indication in the record that the defendants should have known of such injuries (see, Sharkey v Locust Val. Mar., 96 AD2d 1093; Solomon v Stroler, 82 AD2d 756). The plaintiffs’ efforts to establish that the defendants were aware of the disc injuries are dependent on matters dehors the record which cannot be considered by this court (see, Broida v Bancroft, 103 AD2d 88; Liberty Mut. Ins. Co. v Prudential Prop. & Cas. Ins. Co., 93 AD2d 814, affd 59 NY2d 1021). We have considered the defendants’ remaining contentions and find them to be either unpreserved or without merit. Lazer, J. P., Bracken, Brown and Lawrence, JJ., concur.