Diaz v. Avis Rent a Car System, Inc.

The verdict was not against the weight of the evidence. Viewing the evidence in a light most favorable to the prevailing defendants (Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376, 379), a reasonable jury could find that the accident was not the proximate cause of plaintiffs injuries and that the injuries sustained were not "serious”. The testimony of the parties’ experts was conflicting with respect to both issues and the jury was free to credit defendant’s proof and discredit plaintiff’s (Collins v McGinley, 158 AD2d 151, 155, appeal dismissed 77 NY2d 902, 78 NY2d 1002). Any error in precluding cross-examinatiori of a defense expert and in admitting a police accident report was harmless under the present circumstances (see, Fischl v Carbone, 155 AD2d 516). Plaintiff has failed to preserve his contention that defense counsel’s summation deprived him of a fair trial (Smith v City of New York, 217 AD2d 423). While defense counsel’s summation comments exceeded the limits of appropriate comment, plaintiff’s counsel never objected during summation or at any time before the rendition of the verdict. Given that "[t]he comments complained of have some evidentiary basis” (Scott v Mason, 155 AD2d 655, 658), in that this record contains evidence that two of plaintiffs treating physicians falsified documents in order to obtain no fault payments, we decline to exercise our discretionary power to review these excesses. We have considered plaintiffs’ remaining contentions and find them to be without merit. Concur — Sullivan, J. P., Milonas, Rosenberger, Kupferman and Nardelli, JJ.