Flatow v. International Terminal Operating Co.

Appellate Division of the Supreme Court of New York

Flatow v. International Terminal Operating Co.

29 A.D.2d 952, 289 N.Y.S.2d 257, 1968 N.Y. App. Div. LEXIS 4272

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

DecidedApril 8, 1968

StatusPublished

Cited by1 cases

This text of 29 A.D.2d 952 (Flatow v. International Terminal Operating Co.) 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

Flatow v. International Terminal Operating Co., 29 A.D.2d 952, 289 N.Y.S.2d 257, 1968 N.Y. App. Div. LEXIS 4272 (N.Y. Ct. App. 1968).

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Opinion

In an action to recover damages for personal injuries, defendant International Terminal Operating Co., Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County, entered March 13, 1967, as is in favor of plaintiff against said defendant upon a jury verdict. Judgment reversed insofar as appealed from, on the law, and severance and new trial granted as to appellant, with costs to abide the event. The findings of fact below have not been considered. In our opinion, the exclusion from evidence of a police officer’s memorandum book was prejudicial error. The case on the issue of liability was close, plaintiff’s version of the accident being supported only by his own testimony, while a version favorable to appellant, and based on alleged admissions by plaintiff, was given by the police officer. The record of the officer’s cross-examination by plaintiff’s attorney supports an inference that his testimony was being assailed as a possible recent fabrication; and, under the circumstances presented, the exclusion from evidence of the officer’s memorandum book to rebut that inference was seriously prejudicial (Moore v. Leventhal, 303 1ST. Y. 534; Zaulich v. Thompkins Sq. Holding Co., 10 A D 2d 492; Hayes v. City of New York, 23 A D 2d 832). It is unnecessary to decide, therefore, whether the memorandum book was also admissible under CPLR 4518 or as an admission against interest. We are also of the opinion .that prejudicial error was committed in permitting plaintiff to testify, over timely objection by appellant, as to loss of earnings greatly in excess of the amount claimed in the bill of particulars (cf. Brett v. Simon, 277 App. Div. 890; Hondas v. Gallo Original Iron Works, 8 A D 2d 955; Mauro v. Buckert, 15 A D 2d 923; Hoi v. P. S. & M. Catering Corp., 15 A D 2d 775). Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

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In an action to recover damages for personal injuries, defendant International Terminal Operating Co., Inc., appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County, entered March 13, 1967, as is in favor of plaintiff against said defendant upon a jury verdict. Judgment reversed insofar as appealed from, on the law, and severance and new trial granted as to appellant, with costs to abide the event. The findings of fact below have not been considered. In our opinion, the exclusion from evidence of a police officer’s memorandum book was prejudicial error. The case on the issue of liability was close, plaintiff’s version of the accident being supported only by his own testimony, while a version favorable to appellant, and based on alleged admissions by plaintiff, was given by the police officer. The record of the officer’s cross-examination by plaintiff’s attorney supports an inference that his testimony was being assailed as a possible recent fabrication; and, under the circumstances presented, the exclusion from evidence of the officer’s memorandum book to rebut that inference was seriously prejudicial (Moore v. Leventhal, 303 1ST. Y. 534; Zaulich v. Thompkins Sq. Holding Co., 10 A D 2d 492; Hayes v. City of New York, 23 A D 2d 832). It is unnecessary to decide, therefore, whether the memorandum book was also admissible under CPLR 4518 or as an admission against interest. We are also of the opinion .that prejudicial error was committed in permitting plaintiff to testify, over timely objection by appellant, as to loss of earnings greatly in excess of the amount claimed in the bill of particulars (cf. Brett v. Simon, 277 App. Div. 890; Hondas v. Gallo Original Iron Works, 8 A D 2d 955; Mauro v. Buckert, 15 A D 2d 923; Hoi v. P. S. & M. Catering Corp., 15 A D 2d 775). Christ, Acting P. J., Brennan, Rabin, Benjamin and Munder, JJ., concur.

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29 A.D.2d 952, 289 N.Y.S.2d 257, 1968 N.Y. App. Div. LEXIS 4272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flatow-v-international-terminal-operating-co-nyappdiv-1968.

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