Tinney v. Neilson's Flowers

• Decision Date: 02 July 1970
• Citation: 314 N.Y.S.2d 161,35 A.D.2d 532
• Parties: Walter P. TINNEY, as administrator, etc., Respondent, v. NEILSON'S FLOWERS, INC. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 161

314 N.Y.S.2d 161

35 A.D.2d 532

Walter P. TINNEY, as administrator, etc., Respondent, v. NEILSON'S FLOWERS, INC. et al., Appellants.

Supreme Court of New York, Appellate Division Second Department.

July 2, 1970.

Christopher L. Ribaudo, Brooklyn, for plaintiff-respondent; Bernard Meyerson, Brooklyn, of counsel.

Schaffner & Rogan, James M. Furey, Mineola, for defendants-appellants.

Order of Supreme Court, Nassau County, dated July 9, 1969, affirmed, with costs. No opinion. The court has considered the questions of fact and has determined that it would not affirm the granting of a new trial upon those questions. 61 Misc.2d 717, 305 N.Y.S.2d 713.

LATHAM, KLEINFELD and BRENNAN, JJ., concur.

MARTUSCELLO, Acting P.J., and BENJAMIN, J., dissent and vote to reverse the order, deny the motion for a new trial and reinstate the jury's verdict, with the following memorandum:

This is a wrongful death action stemming from an accident in which the deceased, a pedestrian, was struck by defendants' station wagon. The thrust of the defense was that the deceased was intoxicated at the time of the accident and contributorily negligent because of his condition. The action was brought by the deceased's son, as administrator of his estate, on behalf of himself and his sister as the deceased's surviving relatives. When the action was placed on the calendar and plaintiff requested a general preference, he filed a copy of the death certificate and stated that the Central Islip State Hospital records had been made available to defendants. The death certificate list 'Psychosis due to Alcohol, Deterioration' as a contributory cause of death; the Central Islip State Hospital records disclosed that the deceased had been treated there for alcoholism. At the trial, plaintiff injected the issue of intoxication into the case by eliciting from each plaintiff's witness, on direct examination, that he had not smelled alcohol on the deceased's breath shortly after the accident. The witnesses who so testified on direct examination were the deceased's son and daughter, the police officer at the accident scene, and the doctor who had given the deceased emergency treatment at the hospital. On cross-examination of the deceased's son and daughter, they testified without objection that the deceased had had a drinking problem and had been treated for alcoholism at Central Islip State Hospital. After they testified, the record of that hospital was admitted in evidence. When the doctor thereafter testified, he not only was asked about the absence of an alcohol odor on the deceased's breath, but was also questioned on direct examination about the contents of the hospital record, which included the notation 'Mental Diagnosis: Psychosis due to Alcohol, Deterioration'; and at the request of plaintiff's counsel he defined that diagnosis to the jury. During the doctor's cross-examination the death certificate was admitted in evidence without objection; and, as above-noted, it contained a notation that a contributing cause of death was 'Psychosis due to Alcohol, Deterioration'. The jury did not take the hospital record or the death certificate with them when they retired to deliberate. After one hour of deliberation they returned a unanimous verdict for defendants. Thereafter the Trial Judge set aside the verdict and granted a new trial on the ground that he had erred by admitting in evidence the parts of the hospital record and death certificate which referred to the deceased's alcoholism; he held that this was error because that evidence disgraced the deceased's memory and therefore came within the 'non-waivable' medical privilege of CPLR 4504; and he further held that this error must be deemed prejudicial. The majority of this court agrees with the trial court's reasoning and determination and is affirming the order granting a new trial. We disagree and believe the motion for a new trial should have been denied. We believe that in today's more enlightened climate, psychosis resulting from chronic alcoholism would not be considered a condition that 'would tend to disgrace the memory of the decedent' (CPLR 4504, subd. (c)). Today, such an affliction is considered merely an unfortunate illness, not a disgraceful...