Pietrobon v. Immordino

44 A.D.2d 757, 354 N.Y.S.2d 231, 1974 N.Y. App. Div. LEXIS 5285

Opinion

Judgment and order unanimously affirmed, without costs. Memorandum: Defendant was vigorously cross-examined by plaintiff’s counsel with regard to certain portions of a signed statement admittedly given by defendant approximately four months after the accident. In the course of the cross-examination some apparent inconsistencies were developed between the defendant’s testimony in court and the narrative contained in his statement. After defendant was excused and the evidence closed plaintiff offered the entire statement in evidence and the court sustained defendant’s objection stating that there had been testimony as to the relevant parts of it. While the plaintiff’s offer of the statement in evidence was not timely and plaintiff made no motion to reopen the case to make the offer, it might be concluded that the court was in error in not receiving the entire statement in evidence. However, it would appear that plaintiff on cross-examination of defendant did disclose such portions of the statement as were deemed helpful to his position, and the jury having been made aware of such apparent inconsistencies as the plaintiff deemed significant, no substantial right of the plaintiff was prejudiced. (Appeal from judgment and order of Niagara Trial Term dismissing complaint in negligence action.) Present—Marsh, P. J., Moule, Cardamone, Simons and Mahoney, JJ.