Roy v. Reid
| Decision Date | 03 January 1972 |
| Citation | 329 N.Y.S.2d 417,38 A.D.2d 717 |
| Parties | Eugene E. ROY et al., Appellants, v. Robert A. REID, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lipschutz & Brotman, Huntington Station, for appellant Eugene G. Roy; Alan B. Kayton, Copiague, of counsel.
Crowe, McCoy & Agoglia, Garden City, for respondent; Emmett J. Agoglia, Garden City, Morris Zweibel, New York City, of counsel.
Before MUNDER, Acting P.J., and LATHAM, MURTUSCELLO, SHAPIRO and GULOTTA, JJ.
MEMORANDUM BY THE COURT.
In consolidated actions for damages for personal injuries and for wrongful death and conscious pain and suffering, (1) plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered December 14, 1970 in favor of defendant against both plaintiffs, upon a jury verdict after trial on the issue of liability only, and (2) plaintiff Hardy also appeals from an order of the same court, entered November 16, 1970, which denied plaintiff's separate motions for a new trial.
Judgment reversed, on the law as to appellant Hardy and on the law and in the interest of justice as to appellant Roy, and new trial granted, without costs. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions.
Appeal from order dismissed, without costs, as academic in view of the decision herein on the appeals from the judgment.
At the outset of the trial, defendant admitted he had been negligent in the operation of his vehicle and that his negligence was the proximate cause of the accident. At the trial it was stipulated that the only issues to be tried were whether plaintiff Roy and plaintiff Hardy's decedent had been contributorily negligent. More specifically, the issue was whether they were negligent in agreeing to ride in a car driven by defendant while he was intoxicated.
During the trial a police officer testified that following the accident he arrested defendant and took him to the station house where a breathalyzer test was taken by an officer assigned to giving that test to persons who were suspected of driving while intoxicated. The arresting officer was present during the test. On this testimony the trial court admitted the results of the test into evidence over objection by plaintiff Hardy. Thereafter, expert testimony was produced concerning how many drinks would be required to achieve the level of alcohol in the blood established by the breathalyzer test of defendant. The expert further testified as to possible overt symptoms which would be exhibited by one with the level of alcohol involved.
The key issue raised is whether a proper foundation was laid for the introduction of the breathalyzer test. We conclude that no proper foundation was laid (People v. Donaldson, 36 A.D.2d 37, 319 N.Y.S.2d 172). In the cited case it was determined that it is no longer necessary to require expert testimony to establish the general reliability of the breathalyzer. This conclusion is bolstered by the language of ...
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