Vetti v. Aubin Contracting & Renovation

Appellate Division of the Supreme Court of New York

Vetti v. Aubin Contracting & Renovation

306 A.D.2d 874, 761 N.Y.S.2d 903, 2003 N.Y. App. Div. LEXIS 6719

Appellate Division of the Supreme Court of the State of New York·Decided June 13, 2003·No. Appeal No. 2·Published

Opinion

—Appeal from a judgment of Supreme Court, Herkimer County (Daley, J.), entered July 31, 2002, which awarded plaintiff a money judgment against defendant Hunt Bros. Contractors, Inc. upon a decision of the court.

It is hereby ordered that the judgment so appealed from be [875] and the same hereby is unanimously reversed on the law without costs and a new trial is granted.

Memorandum: On appeal from a judgment entered in favor of plaintiff against Hunt Bros. Contractors, Inc. (defendant) following a bench trial, defendant contends that Supreme Court erred in admitting in evidence the petrographic analysis and accompanying test results. We agree. That document was hearsay, and plaintiff made no showing that the document was subject to an exception to the hearsay rule (see Wagman v Bradshaw, 292 AD2d 84, 87-88 [2002]; Serra v City of New York, 215 AD2d 643, 644 [1995]). The error cannot be deemed harmless because plaintiff’s expert relied upon that document in forming his opinion, and the court rendered its verdict based upon the information contained in that document and based upon the expert’s opinion (cf. CPLR 2002). We therefore reverse the judgment and grant a new trial. Present — Pine, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Appeal from a judgment of Supreme Court, Herkimer County (Daley, J.), entered July 31, 2002, which awarded plaintiff a money judgment against defendant Hunt Bros. Contractors, Inc. upon a decision of the court.

It is hereby ordered that the judgment so appealed from be [875] and the same hereby is unanimously reversed on the law without costs and a new trial is granted.

Memorandum: On appeal from a judgment entered in favor of plaintiff against Hunt Bros. Contractors, Inc. (defendant) following a bench trial, defendant contends that Supreme Court erred in admitting in evidence the petrographic analysis and accompanying test results. We agree. That document was hearsay, and plaintiff made no showing that the document was subject to an exception to the hearsay rule (see Wagman v Bradshaw, 292 AD2d 84, 87-88 [2002]; Serra v City of New York, 215 AD2d 643, 644 [1995]). The error cannot be deemed harmless because plaintiff’s expert relied upon that document in forming his opinion, and the court rendered its verdict based upon the information contained in that document and based upon the expert’s opinion (cf. CPLR 2002). We therefore reverse the judgment and grant a new trial. Present — Pine, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.

Vetti v. Aubin Contracting & Renovation, 306 A.D.2d 874, 761 N.Y.S.2d 903, 2003 N.Y. App. Div. LEXIS 6719 (N.Y. Ct. App. 2003).

Pincite

306 A.D.2d 874 (Vetti v. Aubin Contracting & Renovation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related