Upon the foregoing papers, plaintiff Yvette Rivera moves, and plaintiffs Donald Puglisi and Wea Fan cross move, for an order (1) recusing the presiding trial court justice, Honorable Robert D. Lippmann, from hearing and adjudicating the instant post trial motion and referring the motion to another justice of coordinate jurisdiction; (2)granting plaintiffs judgment against defendants New York City Transit Authority, Manhattan and Bronx Surface transit operating Authority and Antonio Batista (collectively "defendants"), notwithstanding the verdict; and/or (3) setting aside the verdict and ordering a new trial, pursuant to CPLR 4404, on the grounds that the verdict is against the weight of the evidence and on the grounds of improper evidentiary trial rulings. Defendants oppose the motion and cross-motion.

Plaintiffs commenced the instant action for injuries sustained on August 1, 2000, when a bus that was owned and operated by defendants, proceeded diagonally across two center lanes of moving traffic on 34th Street, striking a vehicle, mounting the sidewalk, striking one of the plaintiffs and ultimately careening into a building. It is alleged that there were approximately 36 injured parties. Several actions were commenced as a result of this accident. Many of the [*2]actions were resolved prior to trial, and the remaining actions were herein consolidated for trial by order dated February 25, 2002.

In defense of this action, defendants maintain that the operator of the bus lost consciousness while driving and that he had no recollection of what transpired between the time he pulled the bus out of the bus stop and when he woke up covered in glass and with people attempting to pull him out of the bus. Plaintiffs claimed that the bus operator suffered from hypoglycemia and experienced "premonitory symptoms" or warning signs that he was becoming ill, which should have alerted him to not operate the bus.

The jury rendered a verdict in favor of defendants. The verdict sheet contained one interrogatory which the jury answered in the affirmative: "Did the defendant, Antonio Batista, have a sudden, unanticipated medical emergency, before causing the accident?" Accordingly, the jury accepted the affirmative defense and found that defendants were not negligent in the happening of the accident as the operator suffered from an unanticipated medical emergency. The instant post trial motions ensued.

The trial court's authority to set aside a verdict is found in CPLR 4404(a) which provides, in part, that "the court may set aside a verdict . . . as a matter of law or it may order a new trial of . . . [a] separable issue where the verdict is contrary to the weight of the evidence [or] in the interests of justice." The application to set aside the verdict must be made before the judge who presided over trial (CPLR 4405). The trial court should be guided by the rule that if a verdict is one which reasonable persons could have rendered after receiving conflicting evidence, then the court should not substitute its judgment for that of the jury's. While great discretion and caution are entrusted with the trial court in deciding motions to set aside a jury's verdict, a court must exercise due caution and restraint when exercising its power to disturb a jury's findings (see Mazariegos v New York City Tr. Authority, 230 AD2d 608 [1st Dept 1996]). The evidence must be viewed in the light most favorable to the opposing party and the verdict upheld if there is any reasonable view of the evidence that would support the opposing party's claim (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195 [1st Dept 2004]).

Applying the foregoing here, plaintiffs' request for an order of recusal of the trial judge with reference to the hearing and adjudication of the post trial motion is denied. Plaintiffs point to no legal support for a judge of coordinate jurisdiction to preside over the post trial motions. Moreover, plaintiffs claim that judicial misconduct permeated the trial is unfounded and unsupported by the record. While the trial was heavily contested and the Court and attorneys were at times animated, the colloquies complained of were held outside the presence of the jury and the court conducted the trial in an unbiased impartial manner. In any event, the full trial record was not submitted at the time of the motion or when defendants submitted opposition, thus defendants were not able to rely upon the record to refute plaintiffs' arguments or support their own. Accordingly, even were the court to find that plaintiffs established that the court conducted the trial in an impartial and prejudicial manner — which the court does not so hold — then defendants would be entitled to an opportunity to submit supplemental opposition now that the record is available to the to refute the allegations.

As to that branch of plaintiffs' request for relief which seek to set aside the verdict as against the weight of the evidence, that application is also denied. Evidence adduced at trial supported defendants' affirmative defense that the bus operator suffered from a medical emergency, or a sudden and unanticipated blackout diagnosed as idiopathic syncope, which [*3]caused him to lose control of the vehicle. The operator testified that he suddenly lost consciousness and medical testimony proffered by defendants at trial supported their contention that hypoglycemia did not cause the operator to lose consciousness, but rather that he suffered from an episode of idiopathic syncope. Thus, in viewing the evidence in the light most favorable to the defendants, the jury had ample reasonable basis to support its conclusion, despite plaintiffs' contentions and evidence to the contrary, that the operator did not experience warning signs of his illness before losing consciousness which should have prevented from driving the bus (see Mazariegos, 230 AD2d 608; McDermot, 9 AD3d 195).

Additionally, plaintiffs contest several evidentiary rulings which they claim support the basis for overturning the jury's verdict. Essentially plaintiffs contend that they are entitled to either judgment n.o.v., or a new trial due to adverse rulings regarding the preclusion and or admission of various pieces of evidence at trial and because of alleged errors with respect to the charge and verdict sheet. However, because the court finds plaintiff's contentions unpersuasive and/or without merit, and that appropriate references to the record were not and could not be made at the time of the motion, and because the court further views that these evidentiary issues should be raised on appeal and not in the form of the instant CPLR 4404 motion, the court will swiftly address and dispose of each point seriatim.

The court did not commit error when it allowed defendants to read deposition testimony and other sworn statements of numerous of parties to the consolidated case despite the fact that all parties did not receive notice. Pursuant to CPLR 3117(2), the "deposition testimony of any party or any person who was a party when the deposition was given . . . may be used for any purpose by any party who was adversely interested when the deposition was given or who is adversely interested when the deposition is offered in evidence." Significantly, there is no notice requirement. Here, plaintiffs' actions were consolidated for discovery and trial. Thus party statements made by plaintiffs in the consolidated action, whose individual cases have since settled, were properly admissible into evidence, despite the lack of alleged notice to trial counsel.

There was no evidence or scientific basis to support that the Glucose Tolerance Test (GTT) was a means to diagnose hypoglycemia. Accordingly, the court ruled that no expert could testify that plaintiff suffered from hypoglycemia based upon the results of a GTT. The court provided plaintiffs with opportunity to support their contention that GTT may be used to diagnose hypoglycemia, however, they never did so. Also, despite plaintiffs' and defendants statements to the contrary, the court did not conduct a Frye hearing as plaintiffs were unable to proffer any proof in support of their theory. Instead, what occurred were a series of colloquies discussing the issue. Thus, plaintiffs misstate the facts when they contend that the court precluded them from discussing the relevance of GTT and erred in calling a Frye hearing. Regardless, Fry hearings may be called at any point during the trial prior to verdict (see Lara v NYCH7HC, 305 AD2d 106 [1st Dept 2003]).

The court did not err in its refusal to allow the plaintiffs expert engineer to testify as to consciousness of the bus operator and that it was due to "aggressive application of acceleration" that the bus traversed approximately 400 feet. Determining whether the driver was conscious is outside the discipline of engineering. The court did not issue a blanket ruling precluding the engineering expert from testifying. Rather, the court allowed plaintiff to submit proof that the [*4]bus was under "active power" when the accident occurred.^[FN1]

The court also did not err in limiting the evidence that plaintiffs could introduce with respect to refuting defendants' affirmative defense. Plaintiffs had rested in their case in chief and there was no basis provided as to why plaintiffs needed an additional opportunity to proffer more lay witnesses which it could have and should have proffered in their case in chief. Plaintiffs were in no way prevented from offering evidence in rebuttal to the affirmative defense.

The court did not err in permitting a diagram, which illustrated the recorded measurements of the distances between various points involved in the accident, to be viewed by the jury. It is of no moment that the diagram was not drawn to scale as it was intended to show distances. Defendants conceded that the diagram did not show trajectory.

Nor did the court err in presenting one interrogatory to the jury to answer. The case hinged upon whether the operator suffered from an unanticipated medical emergency. It was not contested that several Vehicle and Traffic Laws were violated in the happening of the accident and, indeed, the court had intimated an inclination to grant plaintiffs a directed verdict should the jury find that the operator's illness was foreseeable. The court notes that the parties ultimately agreed upon the single charge that was posed to the jury.

Nor did the court err in reading an emergency charge to the jury. Although the emergency instruction is typically reserved for external circumstances, the charge was appropriate here because the driver was "confronted" with a sudden medical emergency, loss of consciousness. "An emergency charge is only proper when, viewing the evidence in the light most favorable to the party requesting it, there is a reasonable view of the evidence that the defendant's conduct was the product of a sudden, unforeseeable occurrence not of the defendant's own making (see Caristo v. Sanzone, 96 NY2d 172)" (Deitz v Huibregtse, — AD3d ——, 2006 WL 205066 [2d Dept Jan. 24, 2006]). A party requesting the emergency instruction is entitled to have the jury so charged if some evidence of a qualifying emergency is presented. Where, as here, there is a reasonable basis to find that it was unforeseeable that the driver suddenly lost consciousness while driving, the driver " cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision'"(Rivera v New York City Transit Authority, 77 NY2d 322 [1991]).

Finally, plaintiffs move to set aside the verdict due to an alleged fraud that was committed against the court. In essence, plaintiffs contend that in opposition to a summary judgment motion that was made before trial defendants only submitted part of an affidavit and incomplete medical records of doctor who examined the bus operator. Apparently, office records indicate that Dr. Vileceus diagnosed the potential cause of the operator's unconsciousness was due to hypoglycemia. Dr. Vileceus, however, affirms two years later that the cause for the loss of consciousness was "due to an unexplained cause." Plaintiffs claim that if the complete medical records and full statement from Dr. Vileceus had been submitted then the court would have decided the summary judgment motion differently.

With respect to the instant motion, however, it is unclear to the court how plaintiffs were [*5]damaged at trial, assuming defendants did indeed commit the act alleged. Plaintiffs were aware of the discrepancy and could have presented the evidence to the jury. Also, the court could have issued a so ordered subpoena directing Dr. Vileceus to testify at trial. Assuming fraud was committed upon the court two years ago at the summary judgment stage, it is unclear how such acts entitle plaintiffs to a new trial and/or reversal of the jury verdict. To the extent that these facts set forth the basis for a fraud claim, plaintiffs should bring a separate motion detailing the accusation and specifying the individuals involved.

Accordingly it is

ORDERED that the motion and cross motion of plaintiffs for an order (1) recusing the presiding trial court justice, Honorable Robert D. Lippmann, from hearing and adjudicating the instant post trial motion and referring the motion to another justice of coordinate jurisdiction; (2)granting plaintiffs judgment against defendants notwithstanding the verdict; and/or (3) setting aside the verdict and ordering a new trial, pursuant to CPLR 4404, is denied in its entirety for the reasons stated herein, except to the limited extent that plaintiffs are authorized to bring a separate motion for fraud, specifying damages incurred.

Dated: February 27, 2006ENTER:

ROBERT D. LIPPMANN, J.S.C.