Sirico v. Cotto

• Decision Date: 07 September 1971
• Citation: 324 N.Y.S.2d 483,67 Misc.2d 636
• Parties: Anna SIRICO, Plaintiff, v. William COTTO et al., Defendants.
• Court: New York City Court

Page 483

324 N.Y.S.2d 483

67 Misc.2d 636

Anna SIRICO, Plaintiff, v. William COTTO et al., Defendants.

Civil Court of the City of New York, New York County, Trial Term, Part 26.

Sept. 7, 1971.

Fontanelli & Fontanelli, New York City, for plaintiff.

Guminick & Lieber, New York City, for defendants.

IRVING YOUNGER, Judge.

In the course of trying this personal injury action, there arose a problem in evidence the solution of which seemed to elude plaintiff's attorney. For whatever assistance it will be to him, and because others may find it useful, I am filing this memorandum.

To support her case on damages, plaintiff called as a witness Dr. Stanley Wolfson, a specialist in radiology. Dr. Wolfson testified that plaintiff had been sent to him by the treating physician and that, in due course, Dr. Wolfson had taken a number of X-ray photographs of plaintiff's spine. After studying them, he wrote a report setting forth his conclusions and sent it, together with the X-ray plates, directly to the treating physician. All that Dr. Wolfson had with him as he sat on the witness stand was a copy of his report. Having refreshed his recollection from it, he was asked to describe what he had found in the X-rays and to state his opinion with respect to plaintiff's physical condition. At this point, defense counsel objected. In order to afford plaintiff an opportunity to make her record, the jury was excused, and Dr. Wolfson completed his testimony in its absence. He said that the X-rays showed a flattening of plaintiff's lumbar lordosis and a scoliosis of her mid-lumbar spine with convexity towards the left, from which he would conclude that plaintiff was suffering from the consequences of a lumbar-sacral sprain. As to the whereabouts of the X-ray plates, Dr. Wolfson knew only that he had sent them to the treating physician. That gentleman did not testify. Plaintiff's counsel did not have the plates in his possession, nor did he explain his failure to produce them. I sustained defendants' objection and, upon the jury's return to the courtroom, excused Dr. Wolfson.

The problem, then, is whether Dr. Wolfson, without the X-ray plates, might describe what he had seen in them and state the significance he ascribed to his observations. Two lines of analysis are available, each of which leads to the same conclusion--that Dr. Wolfson's testimony is inadmissible.

First, the best evidence rule. This oft-mentioned and much misunderstood rule merely requires a party who seeks to prove the contents of a document to offer in evidence the original copy of that document. Taft v. Little, 178 N.Y. 127, 133, 70 N.E. 211, 212 (1904); Mahaney v. Carr, 175 N.Y. 454, 462, 67 N.E. 903, 905 (1903); Butler v. Mail and Express Publishing Co., 171 N.Y. 208, 211, 63 N.E. 951, 952 (1902); Thayer, Preliminary Treatise on Evidence, p. 503 (1898). If he does not, but rather offers secondary evidence (such as a photostat, a carbon, or a witness' Viva voce description of the document), the adversary's objection must be sustained. But if the proponent explains his failure to offer the original copy of the document, he may then proceed to prove its contents by whatever secondary evidence is available to him. IV Wigmore, Evidence, Secs. 1192 et seq. (3d ed. 1940). A 'document,' within the meaning of the best evidence rule, is any physical embodiment of information or ideas--a letter, a contract, a receipt, a book of account, a blueprint, or an X-ray plate. Cellamare v. Third Ave. Transit Corp., 273 App.Div. 260, 77 N.Y.S.2d 91 (1st Dept. 1948) (per curiam); Gursslin v. Helenboldt, 259 App.Div. 1064, 21 N.Y.S.2d 269 (4th Dept. 1940) (mem.).

So much for basics. Here, plaintiff asked Dr. Wolfson to describe what he saw when he looked at the X-ray plates. This was secondary evidence of their contents. The best evidence rule, we see, requires plaintiff to offer the originals, which, in the instance of X-rays, would be the familiar negative plates one 'reads' by affixing to a shadow box. Plaintiff's failure to offer these original plates would have been excused had counsel explained his failure (by proof competent for that purpose, needless to say). This he did not do,...