Gunn v. City of New York

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAZER
• Citation: Gunn v. City of New York, 480 N.Y.S.2d 365, 104 A.D.2d 848 (N.Y. App. Div. 1984)
• Decision Date: 09 October 1984
• Parties: Minnie GUNN, Appellant, v. The CITY OF NEW YORK, et al., Respondents.

Page 365

480 N.Y.S.2d 365

104 A.D.2d 848

Minnie GUNN, Appellant, v. The CITY OF NEW YORK, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 9, 1984.

Gewurz & Gewurz, Bellmore and Seligson, Rothman & Rothman, New York City (Martin S. Rothman, New York City, Eric Gewurz, Bellmore, and Alyne I. Diamond, New York City, of counsel), for appellant (one brief filed).

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (Leonard Koerner and Ronald E. Sternberg, New York City, of counsel), for respondent City of New York.

Richard K. Bernard, Brooklyn (John A. Murray, Brooklyn, of counsel), for respondent New York City Transit Authority.

Before LAZER, J.P., and O'CONNOR, WEINSTEIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Kings County, dated April 25, 1983, which, upon a jury verdict, awarded judgment in favor of defendants the City of New York (city) and the New York City Transit Authority (transit authority).

Judgment reversed, on the law, and new trial granted, with costs to abide the event.

Plaintiff commenced this action on August 2, 1979 by service of a summons and verified complaint upon defendants. In her complaint plaintiff alleged that on January 10, 1979, as she was descending from a transit authority bus, she slipped on a patch of ice which had formed in a hole in the roadway. She claimed that the city was negligent in allowing the roadway to remain in an unsafe condition, and that the transit authority was negligent in failing to provide a safe place for her to exit from the bus.

A trial on the issue of liability culminated in a jury verdict in favor of both defendants. On appeal, plaintiff argues, inter alia, that reversal of the judgment entered upon the verdict is required due to an erroneous evidentiary ruling by the trial court. We agree.

Plaintiff testified that when the bus reached her stop it came to a halt three or four feet away from the curb, a little further out than usual. She was the first to alight.

She put her right foot down, let go of the rail, then put her left foot down and started slipping with her right foot. She fell forward and her feet went backwards. After she fell she realized that the first thing she stepped on was a patch of ice which had formed in a hole in the roadway. She was taken to St. Mary's Hospital. She testified that when she got to the emergency room she told someone that she had slipped on ice. Michael M. Elio, a physician's assistant employed by St. Mary's Hospital, testified on behalf of defendant transit authority. As part of Elio's duties, he would obtain the medical history of people coming into the hospital for emergency treatment. At trial, a document was shown to Elio, which he recognized to be a standard medical history form filled out when a patient is admitted to St. Mary's. It bore plaintiff's name. Elio recognized his handwriting and signature on the form, and on that basis testified that he had filled out the form. He explained that the section designated "H.P.I.", for "History of the present illness" is one of the most important parts of the admitting history, where the employee fills in the patient's account of what caused him to be in the state he is in. Ancillary information, such as ambulance reports or notes from referring physicians, could also be included in the "H.P.I." Elio...