Miano v. Westchester Gulf Service Station , 90 A.D.2d 477 ( 1982 )

Motion for reargument of our order of modification of the judgment entered in Bronx County on January 27, 1981 (88 AD2d 560) by directing a new trial on damages only unless plaintiff-respondent should accept a lesser sum than that specified in that judgment denied, with costs. The thrust of the motion is that the trial court committed reversible error by “sustaining the admissibility of medical testimony with resnect to a new injury * * * [as to which defendant-appellant] had no prior notice.” The testimony now belatedly objected to as a “new injury” was not stated to be such in plaintiff’s bill of particulars but was specified in the bill as the possible result of the basic injury complained of. The subject evidence was received during the trial without objection until after that testimony had been completed. By this omission, defendant implicitly waived objection. It matters not at this late moment whether the “waiver” was actually so intended or resulted from a realization that the evidence was indeed no surprise; it is now too late to reopen the question. That branch of the motion seeking leave to appeal to the Court of Appeals is also denied. No question of law is presented worthy of further appeal. Concur — Kupferman, J. P., Sullivan, Markewich and Asch, JJ.