Haase v. Cole

—Judgment affirmed without costs. Memorandum: We reject the contention of plaintiff that he was denied a fair trial by Supreme Court’s instruction to the jury that plaintiff s claim was that defendant’s decedent, Dr. Tucker, in rendering treatment to plaintiff, caused him to sustain an avulsion fracture. The testimony adduced at trial establishes that the gravamen of plaintiffs claim was that Dr. Tucker negligently manipulated plaintiff’s head and neck, causing an avulsion fracture to plaintiffs C5 and C6 vertebrae. Thus, we conclude that the court did not unreasonably restrict the authority of the jury (cf., Parsons v City of New York, 175 AD2d 783, 785). The court did not err in allowing one of defendant’s expert witnesses to testify that plaintiff had degenerative disc disease that existed before Dr. Tucker’s treatment of plaintiff. The disclosure statement of defendant’s expert properly disclosed in reasonable detail the subject matter of the testimony, the substance of the facts and opinions and a summary of the grounds for the expert’s testimony (see, CPLR 3101 [d] [1] [i]). The court properly refused to charge the jury on aggravation of a pre-existing injury and aggravation or activation of a latent disease or condition (see, PJI 2:282, 2:283); plaintiff did not advance such claims and the evidence at trial did not support them. Because the evidence raised the issue of the exercise of medical judgment by Dr. Tucker, the court properly gave an error in judgment charge (see, PJI 2:150; cf., Spadaccini v Dolan, 63 AD2d 110). There is no merit to the contention that the court should have set aside the verdict because an alternate juror engaged in a discussion about the case with other jurors before the court submitted the case to the jury. The court examined the circumstances surrounding the alleged misconduct and the likelihood that prejudice resulted (see, People v Brown, 48 NY2d 388, 394) and properly determined that the brief discussion did not affect the jurors’ impartiality or fitness for service. Because each of the six jurors participated in the deliberations, we reject the contention of plaintiff that his constitutional right to a trial by a six-person jury was violated (see, Siegel, NY Prac § 400, at 602 [2d ed]; cf., Waldman v Cohen, 125 AD2d 116, 124). Finally, upon our review of the record, we conclude that the verdict is not against the weight of the evidence (see, Petrovski v Fornes, 125 AD2d 972, 973, lv denied 69 NY2d 608). All concur except Balio, J., who dissents and votes to reverse in the following Memorandum.