Beltrone v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Beltrone v. New York City Transit Authority

33 A.D.2d 907, 307 N.Y.S.2d 520, 1970 N.Y. App. Div. LEXIS 5776

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 1970

StatusPublished

This text of 33 A.D.2d 907 (Beltrone v. New York City Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beltrone v. New York City Transit Authority, 33 A.D.2d 907, 307 N.Y.S.2d 520, 1970 N.Y. App. Div. LEXIS 5776 (N.Y. Ct. App. 1970).

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Opinion

In a negligence action to recover damages for personal injuries, loss of services, etc., plaintiffs appeal from a judgment of the Supreme .Court, Kings County, entered on January 9,1969, against them •and in favor of defendant New York City Transit Authority upon a jury verdict after a trial solely on the issues of liability. Judgment reversed, on the law, and new trial granted as between appellants and respondent, limited to the. issues of liability, with costs to abide the event. The findings of fact below are affirmed. In our opinion, no proper foundation for the admission into evidence of the written report of respondent’s bus driver, as a prior consistent statement, was present. As a witness at the trial he was charged only with [908]*908mistake or confusion, not “ recent fabrication ” (People v. Singer, 300 N. Y. 120, 124). In any event, since it has been conceded by respondent that the report was preparéd for it by its bus driver, its allegedly negligent employee, as “ attorney’s work products and material prepared for litigation ” (affidavit supporting respondent’s motion for a protective order; see CBLR 3101, subds. [c], [d]), the report was not made at a time when there was no motive to falsify (People v. Katz, 209 N. Y. 311, 336 et seq.). Brennan, Acting P. J., Hopkins, Benjamin, Martuscello and Kleinfeld, JJ., concur.

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In a negligence action to recover damages for personal injuries, loss of services, etc., plaintiffs appeal from a judgment of the Supreme .Court, Kings County, entered on January 9,1969, against them •and in favor of defendant New York City Transit Authority upon a jury verdict after a trial solely on the issues of liability. Judgment reversed, on the law, and new trial granted as between appellants and respondent, limited to the. issues of liability, with costs to abide the event. The findings of fact below are affirmed. In our opinion, no proper foundation for the admission into evidence of the written report of respondent’s bus driver, as a prior consistent statement, was present. As a witness at the trial he was charged only with [908]*908mistake or confusion, not “ recent fabrication ” (People v. Singer, 300 N. Y. 120, 124). In any event, since it has been conceded by respondent that the report was preparéd for it by its bus driver, its allegedly negligent employee, as “ attorney’s work products and material prepared for litigation ” (affidavit supporting respondent’s motion for a protective order; see CBLR 3101, subds. [c], [d]), the report was not made at a time when there was no motive to falsify (People v. Katz, 209 N. Y. 311, 336 et seq.). Brennan, Acting P. J., Hopkins, Benjamin, Martuscello and Kleinfeld, JJ., concur.

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Bluebook (online)

33 A.D.2d 907, 307 N.Y.S.2d 520, 1970 N.Y. App. Div. LEXIS 5776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beltrone-v-new-york-city-transit-authority-nyappdiv-1970.

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