O'Connor v. Incorporated Village of Port-Jefferson
| Decision Date | 09 October 1984 |
| Parties | Daniel O'CONNOR, Appellant, v. INCORPORATED VILLAGE OF PORT JEFFERSON, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Siben & Siben, Bay Shore (Zeitlan & Zeitlan, New York City of counsel), for appellant.
Rein, Mound & Cotton, New York City (Robert L. Horkitz, New York City, of counsel), for respondent.
Before LAZER, J.P., and O'CONNOR, RUBIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered April 19, 1983, which, after a jury trial, was in favor of defendant.
Judgment reversed, on the law and as a matter of discretion, and new trial granted, with costs to abide the event.
Plaintiff was severely injured when he dove into a shallow portion of a lagoon operated by the defendant. For the reasons outlined below, a new trial is warranted.
First, the following statement, contained in the discharge summary of the hospital in which plaintiff was treated, was read to the jury:
"The patient, according to his girlfriend Maureen Henderson, said that they were on the beach, whereupon he had a six-pack of beer and four 10 milligram Valium tablets, and following this went over to the life guard stand while the life guards were patrolling the beach and, against his friend's advice, moved the life guard stand to the edge of the water at the beach and climbed up on the life guard stand and dove into shallow water at the edge of a lagoon on the Long Island Sound Beach at Port Jefferson."
This is double hearsay in which the hearsay declarant (Ms. Henderson) reported another extra-judicial statement (allegedly made by plaintiff) to the staff of the hospital. Ms. Henderson's statement was made approximately eight months after the accident; the time of the alleged statement by plaintiff to Ms. Henderson is not clear. Even if the plaintiff's statement were admissible under an exception to the hearsay rule, Ms. Henderson's statement would still not be admissible. She had no duty to report plaintiff's version of the accident to the hospital (Matter of Leon RR, 48 N.Y.2d 117, 421 N.Y.S.2d 863, 397 N.E.2d 374) and, furthermore, the contents of her statement have no relevance to the diagnosis or treatment of plaintiff's condition (Williams v. Alexander, 309 N.Y. 283, 129 N.E.2d 417; Levine v. Shell Oil Co., 35 A.D.2d 575, 313 N.Y.S.2d 581, mod. on other grounds 28 N.Y.2d 205, 321 N.Y.S.2d 81, 269 N.E.2d 799). Therefore, the business record exception to the hearsay rule (CPLR 4518) does not apply. This error was compounded when defense counsel, in summation, distorted the evidence to the extent that he made it appear that the statement, rather than being a statement by plaintiff reported to the hospital by Henderson, was instead a statement by Henderson herself. Counsel argued that "Maureen Henderson, the patient's girlfriend, said that Danny had a six pack of beer and four 10-milligram Valium tablets".
Further incompetent evidence was admitted regarding plaintiff's alleged drug or alcohol abuse. The contents of an "Emergency ambulance report, Nassau/Suffolk Region" was read into evidence. It appears that this report was prepared by an unspecified member of a volunteer ambulance corps. The report contained the notation "A.O.B." and the statement "Patient took approximately three Valium". ("A.O.B.", in the opinion...
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Yassin v. Blackman
...N.Y.S.2d 602 ; Matter of Peerless Ins. Co. v. Milloul, 140 A.D.2d 346, 347–348, 527 N.Y.S.2d 838 ; O'Connor v. Incorporated Vil. of Port Jefferson, 104 A.D.2d 861, 862, 480 N.Y.S.2d 376 ), a separate line of cases anomalously espoused a carve-out to that rule, holding that a party's admissi......
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Cleary v. City of New York
...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 ......
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Peerless Ins. Co. v. Milloul
...by their maker, but only if those records are certified in accordance with CPLR 4518(c) ( see, O'Connor v. Incorporated Vil. of Port Jefferson, 104 A.D.2d 861, 862-863, 480 N.Y.S.2d 376; Liberto v. Worcester Mut. Ins. Co., 87 A.D.2d 477, 479, 452 N.Y.S.2d 74, lv. dismissed 58 N.Y.2d 605, 45......
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Damon J., Matter of
...the Family Court's ruling with respect to the complainant's hospital records was appropriate (see, O'Connor v. Incorporated Vil. of Port Jefferson, 104 A.D.2d 861, 480 N.Y.S.2d 376; Diamond v. Acker, 78 A.D.2d 546, 432 N.Y.S.2d 34; Nelson v. X-Ray Systems, 46 A.D.2d 995, 361 N.Y.S.2d 468). ......
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Summation
...verdict, as well as other errors for which no curative instructions were given, mandated reversal. O’Connor v. Village of Port Jeferson , 104 A.D.2d 861, 480 N.Y.S.2d 376 (2d Dept. 1984). In a negligence action for personal injuries sustained when the plaintif drove into the defendant’s sha......
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Summation
...verdict, as well as other errors for which no curative instructions were given, mandated reversal. O’Connor v. Village of Port Jeferson , 104 A.D.2d 861, 480 N.Y.S.2d 376 (2d Dept. 1984). In a negligence action for personal injuries sustained when the plaintif drove into the defendant’s sha......
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Summation
...as well as other errors for which no curative instructions were given, mandated reversal. O’Connor v. Village of Port Jefferson , 104 A.D.2d 861, 480 N.Y.S.2d 376 (2d Dept. 1984). In a negligence action for personal injuries sustained when the plaintiff drove into the defendant’s shallow la......
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Summation
...as well as other errors for which no curative instructions were given, mandated reversal. O’Connor v. Village of Port Jefferson , 104 A.D.2d 861, 480 N.Y.S.2d 376 (2d Dept. 1984). In a negligence action for personal injuries sustained when the plaintiff drove into the defendant’s shallow la......