Bennett v. Saeger Hotels, Inc.

209 A.D.2d 946, 619 N.Y.S.2d 424, 1994 N.Y. App. Div. LEXIS 11939

Opinion

—Order unanimously affirmed without costs. Memorandum: In this action seeking to recover damages for personal injuries resulting from an incident that occurred when the infant jumped, fell, or was pushed from a seventh-floor window of defendant’s hotel, plaintiff appeals from an order that granted defendant’s motion in limine to preclude the infant from testifying concerning her allegedly hypnotically enhanced recollection of the incident, and to restrict her testimony to her pre-hypnotic recollection. Supreme Court properly precluded the proffered testimony (see, People v Hughes, 59 NY2d 523; cf., People v Schreiner, 77 NY2d 733; People v Hults, 76 NY2d 190; People v Tunstall, 63 NY2d 1; see also, Austin v Barker, 90 App Div 351, on appeal after remand 110 App Div 510). We reject plaintiff’s contention that the rule developed in criminal cases is inapplicable in this civil context. In deeming hypnotic testimony unreliable and inadmissible per se, the Court of Appeals has expressly rejected a case-by-case approach (see, People v Schreiner, supra, at 739; People v Hughes, supra, at 538-540) and has not relied on constitutional or statutory grounds unique to criminal cases, but on evidentiary considerations common to criminal and civil cases. We have reviewed plaintiff’s remaining contentions and conclude that they are without merit. (Appeal from Order of Supreme Court, Monroe County, Rosenbloom, J. —Restrict Testimony.) Present—Denman, P: J., Pine, Lawton, Wesley and Davis, JJ. [See, 158 Misc 2d 79.]