O'Hearn v. O'Hearn

• Court: New York Supreme Court Appellate Division
• Writing for the Court: KANE and MAIN, JJ., dissent and vote to affirm in the following memorandum by MAIN; MAIN
• Citation: 389 N.Y.S.2d 651,55 A.D.2d 766
• Parties: James L. O'HEARN, as father and natural guardian of Debra O'Hearn, an infant, Appellant, v. David O'HEARN, Respondent. James L. O'HEARN, Appellant, v. David O'HEARN, Respondent.
• Decision Date: 20 December 1976

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389 N.Y.S.2d 651 55 A.D.2d 766 James L. O'HEARN, as father and natural guardian of Debra
O'Hearn, an infant, Appellant,
v.
David O'HEARN, Respondent.
James L. O'HEARN, Appellant,
v.
David O'HEARN, Respondent. Supreme Court, Appellate Division, Third Department. Dec. 20, 1976.

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Burton Lowitz, Syracuse, atty. of record by Irwin Birnbaum, Syracuse (Richard B. Alderman, Syracuse, of counsel), for appellant.

Holcombe & Dame, Plattsburgh (Kenneth H. Holcombe, Plattsburgh, of counsel), for respondent.

Before KOREMAN, P.J., and MAHONEY, HERLIHY, KANE and MAIN, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, entered January 19, 1976 in Clinton County, upon a verdict rendered at a Trial Term in favor of defendant.

On January 7, 1973, Debra O'hearn sustained personal injuries when a snowmobile on which she was a passenger collided with an automobile owned and operated by the defendant. The accident occurred as Jose

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Rodriguez was operating the snowmobile uphill on a road and the defendant immediately preceding impact was proceeding down the hill in his car. As between the two operators and their actual negligence, the question was whether or not the defendant's vehicle was on its own side of the highway and the trial court so charged the jury.

The plaintiff, James O'Hearn, commenced separate actions against the defendant seeking for himself derivative damages based on the loss of services of his daughter, Debra, and medical expenses he incurred on her behalf. In the action on behalf of his daughter he sought damages for her personal injuries. The plaintiff submitted a bill of particulars in response to a demand for bills of particulars that, Inter alia, requested a statement as to: 1) each and every injury sustained by Debra; 2) each and every permanent injury and the nature and extent of such permanency; and 3) the dates and place of hospitalization. The response to those demands consisted of attaching hospital and medical records to the bill of particulars. The defendant's attorney over objection read a portion of the attached hospital records to the jury in his summation.

The plaintiff testified that he was not an eyewitness to the accident, but that after the collision the defendant told him 'I hit her'. The operator of the snowmobile, Jose, testified that at the time of the accident he was on the right side of the road, going about 10 or 15 miles per hour when he got hit. Jose also testified that he had not seen a sign on the area where he operated the machine saying it was designated for snowmobiles. Jose further testified that he did not know if the place where the accident occurred was a road or a driveway.

The infant plaintiff, Debra, testified that the place where the accident happened was a road with a few trailers located thereon. In her opinion the snowmobile was in the middle of the road when they saw the car coming and then they got over to the right and the car hit them.

The defendant testified that he had stopped his car before the impact on his own side of the road. He also testified that he had been going only 5 miles per hour and that after the accident, the operator apologized to him for hitting his car. The plaintiff's attorney objected to any statement by the snowmobile operator as it was hearsay. The trial court first struck the statement, but then admitted it as an impeachment of the testimony of Jose Rodriguez and then finally found it admissible as a 'declaration against interest'.

Another witness, Marion Lord, also testified for the defendant that she had heard Jose Rodriguez after the accident say he was 'sorry'. The plaintiff objected to it upon the ground of hearsay, but the court admitted it as a declaration against interest. An eyewitness to the accident testified that the defendant's car was stopped on its own side of the highway when the snowmobile came and struck it.

Upon this appeal the plaintiff contends that the trial court erred in admitting the hearsay statements of Jose Rodriguez referred to hereinabove. While declarations against interest are admissible as an exception to the hearsay rule, the present record does not establish any basis for the application of that exception. The plaintiff properly objected to the evidence as hearsay and there was no further need for him to specity grounds of inadmissibility when the Trial Justice admitted the evidence as an exception to the hearsay rule. It appears that the trial court withdrew its first finding of admissibility bases upon impeachment after the plaintiff objected to a lack of a proper foundation. It is established that the trial court committed error and that such error was properly preserved by objection for review upon this appeal.

The defendant in his...