Carrion v. McNally & McNally, Inc.

18 A.D.3d 212, 794 N.Y.S.2d 339, 2005 N.Y. App. Div. LEXIS 4768

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2005
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Sallie Manzanet, J.), entered March 26, 2004, upon a jury verdict in defendant’s favor, unanimously affirmed, without costs.

The trial evidence, fairly considered, permitted the jury to reach the verdict it did, particularly since the jury’s underlying credibility determinations are entitled to great deference (see Borden v Capital Dist. Transp. Auth., 307 AD2d 1059 [2003]).

Contrary to plaintiff’s argument, the trial court properly admitted testimony to the effect that an accident report placed in evidence by plaintiff was not contained in plaintiff’s employee file. Although the person who gave this testimony was not plaintiffs employer’s record keeper at the time of the accident, he held that position shortly thereafter and was familiar with the employer’s record keeping procedures during the period in question (see Kupferle v Deidra Trans, Inc., 300 AD2d 192 [2002]). In addition, he testified only as to what plaintiffs file, a business record, contained; he did not comment on the substance of the file documents.

Plaintiff’s remaining argument regarding the workers’ compensation report is not preserved for our review and we decline to reach it. Concur — Tom, J.P, Saxe, Friedman, Marlow and Catterson, JJ.