Schembre v. Atomic Spring and Alignment Co., Inc.
| Decision Date | 19 March 2001 |
| Citation | 281 A.D.2d 531,722 N.Y.S.2d 64 |
| Parties | CARMELO SCHEMBRE, Appellant,<BR>v.<BR>ATOMIC SPRING AND ALIGNMENT CO., INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ritter, J. P., Altman, Goldstein and McGinity, JJ., concur.
Ordered that the judgment is reversed, on the law and as a matter of discretion, the order dated December 22, 1999, is vacated, the motion is granted, and a new trial is granted, with costs to abide the event.
The plaintiff testified at trial that on February 28, 1997, he took his sister's car to a repair shop operated by the defendant and had certain repairs made to the brakes. He further testified that shortly after leaving the shop with his sister's car, the brakes failed, causing him to swerve off the roadway and hit a stanchion in the median of Third Avenue in Brooklyn. A subsequent inspection of the car revealed a leak in the brake line running to the left front wheel.
At trial, the plaintiff produced as a witness the police officer who had prepared the accident report relative to this case; however, the police officer testified that he had no recollection of the details of the accident. On cross-examination, defense counsel elicited testimony from the officer that certain skid marks allegedly depicted in a photograph of the scene of the accident were "indicative of a car hitting the median." In his summation, defense counsel elaborated on his theory that, contrary to the plaintiff's testimony, the brakes did not fail prior to the car's impact with the stanchion, but rather, the brake line broke as a result of that impact. In support of this theory, counsel cited the alleged skid marks as proof that the brakes had in fact functioned prior to such impact.
We agree with the plaintiff that the trial court erred in allowing defense counsel to question the police officer about the alleged connection between the position of the plaintiff's vehicle after the accident and the skid marks depicted in the photograph. There was no evidence establishing that the skid marks shown in the photograph, which was taken on September 9, 1999, were even present on the roadway on the date of the accident, which was more than two years earlier. The officer's opinion, from which the jury could have inferred that the skid marks were made by the plaintiff's car, was thus improperly based on a fact not in evidence (see, Hugelmaier v Town of Sweden, 144 AD2d 934; see also, Cassano v Hagstrom, 5 NY2d 643, 646).
Furthermore, the subject matter about which the officer was called upon...
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...722 N.Y.S.2d 64 (A.D. 2 Dept. 2001) ... Carmelo Schembre, appellant, ... Atomic Spring and Alignment Co., Inc., respondent ... 2000-05112 ... SUPREME COURT OF THE STATE OF NEW YORK ... APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT ... March 19, 2001 ... Gardiner & Nolan, Brooklyn, N.Y. (Thomas J. Nolan of counsel), for appellant ... Cartafalsa, Slattery & Kelly, New York, ... ...
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