Ordered that the cross appeal by the plaintiff Eloise Langhorne is dismissed, without costs or disbursements, as she is not aggrieved by the portions of the judgment cross-appealed from (see CPLR 5511); and it is further,
Ordered that the judgment is modified, on the law, by deleting the provisions thereof in favor of the plaintiff Bernard Langhorne and against the defendants awarding sums for all damages except past medical expenses; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff Bernard Langhorne, those branches of the plaintiffs’ motion which were to set aside the verdict as to past and future pain and suffering and past and future loss
Under the circumstances of this case, where the injured plaintiffs wife provided unrefuted evidence regarding the toll that her husband’s injury had taken on her, including evidence of her activities in attending to him and taking care of his basic daily needs, at the expense of her social life and sexual relationship with him, and the likelihood that these circumstances would continue into the future, the jury’s determination that she was entitled to no damages on her derivative cause of action for loss of past and future services could not have been reached on “any fair interpretation of the evidence,” and thus, is against the weight of the evidence (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; see Nicastro v Park, 113 AD2d 129 [1985]). Accordingly, the trial court correctly ordered a new trial on those categories of damages (see CPLR 4404 [a]; Grant v City of New York, 4 AD3d 158 [2004]; Simmons v Dendis Constr., 270 AD2d 919 [2000]).
The trial court erroneously precluded the plaintiffs from eliciting testimony from the injured plaintiffs treating physician as to the permanency of the injured plaintiff’s injuries on the ground that the report indicating the permanency was not timely exchanged with the defendants’ attorney (see 22 NYCRR 202.17 [h]). The relevant court rule only applies to new injuries, and the permanency of a previously reported injury does not constitute a new injury (see Hughes v Webb, 40 AD3d 1035 [2007] [decided herewith]). The trial court thus erred in precluding the plaintiffs from eliciting testimony from the injured plaintiff’s treating physician regarding his findings and prognosis from his latest examination of the injured plaintiff, which took place approximately one week before the trial. The plaintiffs’ counsel made clear to the trial court that there were no new injuries, and that he had just come into possession of the report that same day (see Hughes v Webb, supra; Krinsky v Rachleff, 276 AD2d 748 [2000]; Iasello v Frank, 257 AD2d 362 [1999]). Consequently, the court also erred in limiting the questioning of that physician to his findings as of December 30, 1998.
Moreover, the trial court erred in permitting defense counsel to elicit certain testimony from the defendants’ medical expert that was not only beyond the scope of his medical report, but
Where, as here, there is a danger that substantial justice has not been done because improper evidentiary rulings tainted the jury verdict, an appellate court should order a new trial (see Gomez v Park Donuts, 249 AD2d 266, 267 [1998]; Wisotsky v Oak Leasing Corp., 212 AD2d 527 [1995]). Accordingly, there should be a new trial on the issue of the injured plaintiffs damages for past and future pain and suffering, and past and future loss of earnings.
The parties’ remaining contentions are without merit. Crane, J.P., Ritter, Lunn and Covello, JJ., concur.