Petrosino v. Bravo Volunteer Ambulance Corp.

225 A.D.2d 405, 640 N.Y.2d 2, 640 N.Y.S.2d 2, 1996 N.Y. App. Div. LEXIS 2706

Opinion

We reject plaintiffs contention that the admission into evidence of a transcript of an alleged tape recording made by a defibrillator machine requires reversal. Although the trial court erred in admitting the transcript, the error was harmless. Plaintiff merely speculates that the incriminating remark about the absence of oxygen allegedly made by defendant Kennedy occurred while the recording device was operating and might have been picked up by the machine. Since there was no reason for the jury to believe that the remark necessarily would have been recorded, the absence of a reference to it in the transcript did not taint plaintiffs testimony that the remark was made. Under these circumstances, there has been no showing that the jury’s findings would have been different if the transcript had been excluded (see, Cotter v Mercedes-Benz Manhattan, 108 AD2d 173, 180).

We have examined plaintiff’s other contentions, including that the jury verdict was not supported by the weight of the evidence, and find them to be without merit. Concur — Sullivan, J. P., Wallach, Kupferman, Nardelli and Tom, JJ.