Rivera v. City of New York

293 A.D.2d 383, 741 N.Y.S.2d 30, 2002 N.Y. App. Div. LEXIS 4021

Opinion

Judgment, Supreme Court, Bronx County (Michael DeMarco, J., and a jury), entered October 12, 2000, in an action for personal injuries caused by a fall on defendant’s premises, awarding the infant plaintiff, inter alia, $300,000 for future pain and suffering over 41 years and $40,000 for future medical expenses, unanimously affirmed, without costs.

The statements in the hospital record attributed to the infant plaintiffs mother, also a plaintiff herein, that the infant was struck by a thrown rock were not admissible either as admissions or under the business records exception to the hearsay rule (CPLR 4518). The statements were not admissions since the mother did not witness the occurrence but based the statements on what she heard from persons other than the infant (see, Quispe v Lemle & Wolff, 266 AD2d 95; Geraty v National Ice Co., 16 App Div 174, 181-182, affd 160 NY 658). Nor do the statements qualify as business records since defendant failed to adduce evidence showing that the statements were germane to treatment or diagnosis (see generally, Williams v Alexander, 309 NY 283, 287; cf., Haulotte v Prudential Ins. Co., 266 AD2d 38, 39). The statements in police records to the same effect attributed to the infant’s father, not a party herein, were also properly excluded, since the father had no personal knowledge as to how the accident happened and was under no duty to make the statements (see, Johnson v Lutz, 253 NY 124; People v Cruz, 283 AD2d 295, lv denied 97 NY2d 640). The awards for future medical expenses and future pain and suffering for injuries involving the loss of eight permanent teeth are supported by a fair interpretation of the expert testimony and do not deviate materially from what is reasonable compensation under the circumstances (CPLR 5501 [c]). We have considered defendant’s other arguments and find them unavailing. Concur—Nardelli, J.P., Tom, Buckley, Rosenberger and Ellerin, JJ.