Poole v. Consolidated Rail Corp.

— Judgment affirmed without costs. Memorandum: On August 22, 1985, plaintiff was injured during the course of his employment with defendant when he fell off a ladder while working inside a gondola car. Plaintiff commenced this action alleging that the wood ladder was unsafe because it was not properly weatherproofed and coated with linseed oil as required by the company safety regulations. The jury awarded plaintiff damages in the amount of $4,152,000. On appeal, defendant argues that the court erred in various disclosure and evidentiary rulings, that the conduct of plaintiffs counsel in examining defendant’s claims agent and in summation was improper and prejudicial, [942] that the court’s charge was erroneous and that the verdict was excessive. The court properly allowed plaintiff to produce two Reports of Unsafe Conditions dated June 12 and July 10, 1985 in which a fellow employee complained about using wood ladders that had not been treated with a preservative. That proof did not materially vary from the allegations in plaintiff’s bill of particulars and was not prejudicial to defendant (see, Noce v Kaufman, 2 NY2d 347). Furthermore, the court did not abuse its discretion in refusing to allow defendant to present evidence of the unavailability of its foreman. The proffered testimony was not material to the central issue in the case, namely, the condition of the ladder and defendant’s failure to use a preservative. The damages were not excessive. Plaintiff was 33 years of age when the accident occurred and suffered serious and permanent injuries, including a herniated disk, nerve root compression, radiculopathy and sexual impotence. The awards for pain and suffering, economic loss and medical expenses were supported by the evidence and within the range of the expert testimony. The court’s ruling permitting plaintiff discovery of all surveillance material obtained by defendant was too broad and should have been confined only to surveillance materials defendant intended to use at trial (see, DiMichel v South Buffalo Ry. Co., 178 AD2d 914 [decided herewith]). That error, however, was harmless because the evidence of defendant’s liability and plaintiff’s damages was overwhelming and because defendant suffered no prejudice by the court’s ruling. The court’s charge was proper in all respects and the conduct of plaintiff’s counsel was not so egregious to require reversal (see, Eschberger v Consolidated Rail Corp., 174 AD2d 983). Defendant’s remaining contentions lack merit. All concur, except Boomer and Lawton, JJ., who dissent in part and vote to modify, in the following Memorandum.