Consolidated Midland Corp. v. Columbia Pharmaceutical Corp.
| Decision Date | 25 June 1973 |
| Parties | CONSOLIDATED MIDLAND CORPORATION, Appellant, v. COLUMBIA PHARMACEUTICAL CORPORATION, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before RABIN, P.J., and HOPKINS, MARTUSCELLO, SHAPIRO and CHRIST, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for negligence and breach of warranty, plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered May 3, 1971, in favor of defendant, upon the dismissal of the complaint at the end of plaintiff's case at a nonjury trial.
Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to abide the event. The appeal did not present questions of fact.
In our opinion, it was error for the trial court to refuse to admit into evidence plaintiff's exhibits which were marked 10 and 11 for identification. While we agree with the trial court that these exhibits could not be admitted under CPLR 4520, they should have been admitted under the common-law hearsay exception rule for official written statements, often called the 'official entries' or 'public document' rule. The common-law rule, which is much broader in scope, has not been superseded by CPLR 4520 ().
It should be noted, however, that since these exhibits are not admissible under CPLR 4520 they will not be 'prima facie evidence of the facts' contained in them, but merely some evidence which the trier of the facts is free to disbelieve even though the adverse party offers no evidence on the point (see Supplementary Practice Commentary on CPLR 4520, by Professor Joseph M. McLaughlin, in McKinney's Cons.Laws of N.Y., Book 7B, Pocket Part; 5 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4520.04).
We feel it important to add, however, that in the instant case the trial court should afford plaintiff the opportunity of putting on the stand a person with sufficient expertise to explain the seemingly complicated analytical notations, at least with respect to exhibit 10. Without such a witness, the admission of exhibit 10 into evidence would be meaningless.
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...for "official written statements, often called the official entries or public document rule." Consol. Midland Corp. v. Columbia Pharm. Corp. , 42 A.D.2d 601, 345 N.Y.S.2d 105, 106 (2d Dep't 1973) (internal quotation marks omitted); accord Richards v. Robin , 178 A.D. 535, 165 N.Y.S. 780, 78......
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...if they do not impose a higher standard of care than that imposed by law. Consolidated Midland Corp. v. Columbia Pharmaceutical Corp. , 42 A.D.2d 601, 345 N.Y.S.2d 105 (2d Dept. 1973). It was error to exclude exhibits which, while not qualiied under CPLR 4520, could be admitted under the DO......
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...if they do not impose a higher standard of care than that imposed by law. Consolidated Midland Corp. v. Columbia Pharmaceutical Corp. , 42 A.D.2d 601, 345 N.Y.S.2d 105 (2d Dept. 1973). It was error to exclude exhibits which, while not qualiied under CPLR 4520, could be admitted under the co......
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...exercised only if they do not impose a higher standard of care than that imposed by law. Consol. Midland Corp. v. Columbia Pharm. Corp. , 42 A.D.2d 601, 345 N.Y.S.2d 105 (2d Dept. 1973). It was error to exclude exhibits which, while not qualified under CPLR 4520, could be admitted under the......
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Documents
...if they do not impose a higher standard of care than that imposed by law. Consolidated Midland Corp. v. Columbia Pharmaceutical Corp. , 42 A.D.2d 601, 345 N.Y.S.2d 105 (2d Dept. 1973). It was error to exclude exhibits which, while not qualified under CPLR 4520, could be admitted under the c......