Devore v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Devore v. New York City Transit Authority

293 A.D.2d 385, 741 N.Y.S.2d 205, 2002 N.Y. App. Div. LEXIS 4022

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

DecidedApril 23, 2002

StatusPublished

This text of 293 A.D.2d 385 (Devore 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

Devore v. New York City Transit Authority, 293 A.D.2d 385, 741 N.Y.S.2d 205, 2002 N.Y. App. Div. LEXIS 4022 (N.Y. Ct. App. 2002).

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Opinion

—Judgment, Supreme Court, Bronx County (Anne Targum, J., and a jury), entered January 9, 2001, in favor of defendant Transit Authority [386]*386dismissing the complaint in an action for personal injuries sustained when plaintiff fell off a subway platform and was hit by a train, unanimously affirmed, without costs.

Plaintiff argues that two written pretrial statements given by a nonparty eyewitness about a month after the accident, to the effect that plaintiff had been laying on the tracks for a full minute before the train struck him, are probative of the ample time the train operator had to stop the train before it hit plaintiff and are inconsistent with the witness’s trial testimony. While the statements were admitted for purposes of impeachment, they were excluded as evidence-in-chief of the facts stated therein. We reject plaintiff’s argument that the trial court thereby committed error. As the trial court explained, unlike Letendre v Hartford Acc. & Indent. Co. (21 NY2d 518), the reliability of the statements was called into question by many circumstances (see, Nucci v Proper, 95 NY2d 597), including the witness’s difficulty with the English language, the drafting of the statements in English not by defendant’s but by plaintiff’s investigator, who briefly read them to the witness in English, the absence of anything in the statements that was against the witness’s pecuniary or penal interests, and the existence of other statements made by the witness at the scene of the accident to a police officer and one of defendant’s agents that did not mention that plaintiff had been on the tracks for a minute before he was struck. The trial court also properly precluded another witness from testifying about subsequent oral statements made by the first witness that allegedly verified the accuracy of the two written statements (see, CPLR 4514). We have considered and rejected plaintiff’s other arguments. Concur—Nardelli, J.P., Tom, Buckley, Rosenberger and Ellerin, JJ.

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—Judgment, Supreme Court, Bronx County (Anne Targum, J., and a jury), entered January 9, 2001, in favor of defendant Transit Authority [386]*386dismissing the complaint in an action for personal injuries sustained when plaintiff fell off a subway platform and was hit by a train, unanimously affirmed, without costs.

Plaintiff argues that two written pretrial statements given by a nonparty eyewitness about a month after the accident, to the effect that plaintiff had been laying on the tracks for a full minute before the train struck him, are probative of the ample time the train operator had to stop the train before it hit plaintiff and are inconsistent with the witness’s trial testimony. While the statements were admitted for purposes of impeachment, they were excluded as evidence-in-chief of the facts stated therein. We reject plaintiff’s argument that the trial court thereby committed error. As the trial court explained, unlike Letendre v Hartford Acc. & Indent. Co. (21 NY2d 518), the reliability of the statements was called into question by many circumstances (see, Nucci v Proper, 95 NY2d 597), including the witness’s difficulty with the English language, the drafting of the statements in English not by defendant’s but by plaintiff’s investigator, who briefly read them to the witness in English, the absence of anything in the statements that was against the witness’s pecuniary or penal interests, and the existence of other statements made by the witness at the scene of the accident to a police officer and one of defendant’s agents that did not mention that plaintiff had been on the tracks for a minute before he was struck. The trial court also properly precluded another witness from testifying about subsequent oral statements made by the first witness that allegedly verified the accuracy of the two written statements (see, CPLR 4514). We have considered and rejected plaintiff’s other arguments. Concur—Nardelli, J.P., Tom, Buckley, Rosenberger and Ellerin, JJ.

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Bluebook (online)

293 A.D.2d 385, 741 N.Y.S.2d 205, 2002 N.Y. App. Div. LEXIS 4022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devore-v-new-york-city-transit-authority-nyappdiv-2002.

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