John Berry v. Jewish Board Family & Children's Services

DECISION & ORDER The plaintiff John Berry suffered a fractured elbow with complications on January 27, 1978, when he was 13 years old, while he was a student at the Hawthorne Cedar Knolls School. The injury occurred when he slipped on a patch of ice while being forcibly escorted to the principal's office by his teacher. After a trial, the jury found that the defendant Jewish Board of Family & Childrens Services, which operated the school, was 100% at fault in the happening of the accident and that the plaintiff John Berry suffered damages in the principal sum of $1,200,000. Contrary to the appellant-respondent's contention, the trial court properly permitted Dr. Pugh to testify regarding his opinion that the injuries sustained had corroborated the plaintiff's version of the accident. The appellant-respondent contends that the evidence was cumulative and should have been excluded, since Dr. Korm had already testified that the injury was consistent with Mr. Berry's explanation of how the accident occurred. It is well settled that whether evidence should be excluded as cumulative rests within the sound discretion of the trial court (see, Abbott v New Rochelle Hosp. Med. Center, 141 A.D.2d 589).