Montas v. Abouel-Ela , 154 A.D.3d 589 ( 2017 )

Montas v Abouel-Ela (2017 NY Slip Op 07413)

Montas v Abouel-Ela

2017 NY Slip Op 07413

Decided on October 24, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 24, 2017
Renwick, J.P., Kapnick, Gesmer, Kern, JJ.

4793 305620/10

[*1]Lazaro Joel Montas, Plaintiff-Appellant,

v

Sally H. Abouel-Ela, Defendant-Respondent.

Ogen & Sedaghati, P.C., New York (Eitan A. Ogen of counsel), for appellant.

Picciano & Scahill, P.C., Bethpage (Andrea E. Ferrucci of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Howard H. Sherman, J.), entered April 26, 2016, upon a jury verdict in favor of defendant, unanimously affirmed, without costs.

Plaintiff has not demonstrated conduct by defendant's counsel that would warrant reversal. Defendant's counsel was properly permitted to cross-examine plaintiff's expert rebuttal witness about the circumstances surrounding his suspension from chiropractic school for falsely reporting that he had seen patients, a matter relevant to his credibility (see generally Badr v Hogan, 75 NY2d 629, 634 [1990]; Spanier v New York City Tr. Auth., 222 AD2d 219, 220 [1st Dept 1995]). Although the conduct was 30 years ago, the witness opened the door to its relevancy by claiming that his expert knowledge of biomechanics came, in part, from his training as a chiropractor. Counsel's comments about the plaintiff's expert in summations were within the broad bounds of rhetorical comment (see Selzer v New York City Tr. Auth., 100 AD3d 157, 163 [1st Dept 2012]).

In any event, the purportedly offensive comments did not "create a climate of hostility that so obscured the issues as to have made the trial unfair" (Wilson v City of New York, 65 AD3d 906, 908 [1st Dept 2009]; cf. O'Neil v Klass, 36 AD3d 677 [2d Dept 2007]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 24, 2017

CLERK