Motor Vehicle Accident: Cicco v. Durolek (N.Y. Sup. Ct., Niagara Co.)

December 31, 2017

by Patrick S. Kenney, Esq.


In Cicco, the plaintiff alleged a motor vehicle accident aggravated a pre-existing low back condition, and that as a result he was unable to work or care for his child, that he was required to move in with his parents, and that his treating physician had recommended surgery.  Plaintiff asserted claims for past and future wages, past and future medical expenses, and economic loss in excess of basic economic loss.


At trial, plaintiff repeatedly attempted to introduce non-testifying treating physicians’ opinions and medical records through a testifying doctor.  Plaintiff argued that the opinions of non-testifying treating physicians could be presented to the jury through the testimony of a testifying treating physician, essentially by reading those opinions into evidence as set forth in the non-testifying physicians’ medical records.  Defendant objected to the introduction of the non-testifying physicians’ hearsay opinions and records, citing Wagman v. Bradshaw, 292 A.D.2d 84 (2d Dept. 2002) and pointing out that plaintiff’s counsel was free to call the additional treating physicians as witnesses but chose not to do so.  The Court sustained defendant’s objections, refusing to permit the records from being introduced into evidence and preventing the opinions from being read to the jury.


Also at trial, defendant challenged plaintiff’s credibility by showing that contrary to his testimony, plaintiff failed to be truthful and honest with his post-accident physicians about his prior history.  Defendant also established through the use of social media that contrary to plaintiff’s testimony, he maintained an active social life.  After establishing plaintiff’s credibility issues, defendant cross-examined an IME doctor, who then admitted that his previously stated opinions as to causation (favoring the plaintiff) would change if it was shown that plaintiff was not truthful and honest in reporting his prior history and subjective complaints.


The jury concluded plaintiff was not credible, and rendered a verdict in favor of defendant, finding plaintiff did not sustain an aggravation of his prior back injury as a result of this motor vehicle accident.