Cleary v. City of New York

• Decision Date: 16 December 1996
• Citation: 651 N.Y.S.2d 119,234 A.D.2d 411
• Parties: Michael CLEARY, Appellant, v. CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 119

651 N.Y.S.2d 119

234 A.D.2d 411

Michael CLEARY, Appellant, v. CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 16, 1996.

Richard J. Sgarlato, P.C., Staten Island (Philip Monier, III and Gina M. Sgarlato, of counsel), for appellant.

Paul A. Crotty, Corporation Counsel, New York City (Larry A. Sonnenshein and Julian L. Kalkstein, of counsel), for respondent.

Before MILLER, J.P., and RITTER, SULLIVAN and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Golden, J.), entered June 1, 1995, which, upon a jury verdict, is in favor of the defendant and against him dismissing the complaint. Justice Sullivan has been substituted for the late Justice Hart (22 NYCRR 670.1[c] ).

ORDERED that the judgment is affirmed, with costs.

Contrary to the plaintiff's contention, his photographic exhibit showing potholes he allegedly "swerved" to avoid was properly excluded by the trial court, since he never previously claimed or testified that swerving caused his motorcycle to go out of control (see, Brook-Hattan Utils., Inc. v. 893 Constr. Corp., 180 A.D.2d 660, 579 N.Y.S.2d 705; Sharkey v. Locust Val. Mar., Inc., 96 A.D.2d 1093, 1094, 467 N.Y.S.2d 61; cf., Ackerman v. City of New York, 22 A.D.2d 790, 253 N.Y.S.2d 775).

The ambulance report was also properly excluded (see, O'Connor v. Incorporated Vil. of Port Jefferson, 104 A.D.2d 861, 862, 480 N.Y.S.2d 376, citing, inter alia, CPLR 4518[a], [c] ). Accordingly, the trial court correctly refused to permit the plaintiff's toxicologist to testify from the ambulance report (see, Comizio v. Hale, 165 A.D.2d 823, 824, 560 N.Y.S.2d 198, quoting Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 726, 480 N.Y.S.2d 195, 469 N.E.2d 516; see also, Borden v. Brady, 92 A.D.2d 983, 461 N.Y.S.2d 497).

We also conclude that the trial court did not improvidently exercise its discretion when it prohibited the police officer who responded to the scene of the accident from testifying as to the cause of the accident using information contained on the cover sheet of his police report, or in the police report itself, since he neither witnessed the accident nor was he qualified to render an opinion as to its cause (see, Murray v. Donlan, 77 A.D.2d 337, 347, 433 N.Y.S.2d 184).

The court properly admitted the certified hospital report from Bellevue Hospital containing the...