Smith v. Emkay Fifth Avenue, Inc.

172 A.D.2d 656, 568 N.Y.S.2d 457, 1991 N.Y. App. Div. LEXIS 5549

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Garry, J.), dated July 21, 1989 which, upon a jury verdict, is in favor of the defendant and against them on the issue of liability.

Ordered that the judgment is affirmed, with costs.

We find that the trial court properly precluded the plaintiff from bolstering her trial testimony by use of a prior consistent statement contained in a hospital record. An impeached witness cannot be rehabilitated by his or her antecedent consistent statements unless the cross-examiner has created the inference of, or directly characterized the testimony as, a recent fabrication (see, People v McClean, 69 NY2d 426, 428). The cross-examination here was an attempt to challenge the reliability of the plaintiff Ann Smith’s account of how the incident in question occurred, but was not an attempt to show that her testimony was a recent fabrication (see, Fishman v Scheuer, 39 NY2d 502, 504). Sullivan, J. P., Eiber, Rosenblatt and Ritter, JJ., concur.