Viera v. New York City Transit Authority

Appellate Division of the Supreme Court of New York

Viera v. New York City Transit Authority

221 A.D.2d 625, 634 N.Y.S.2d 168, 1995 N.Y. App. Div. LEXIS 12465

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 27, 1995

StatusPublished

This text of 221 A.D.2d 625 (Viera v. New York City Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Viera v. New York City Transit Authority, 221 A.D.2d 625, 634 N.Y.S.2d 168, 1995 N.Y. App. Div. LEXIS 12465 (N.Y. Ct. App. 1995).

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Opinion

—In a negligence action to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Supreme Court, Kings County (Yoswein, J.), entered April 19, 1994, which, after a jury trial on the issue of liability finding the defendant 90% at fault and the plaintiff 10% at fault in the happening of the accident, is in favor of the plaintiff and against it.

Ordered that the interlocutory judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

The trial court improperly ruled that the defense counsel was required to lay a foundation for the introduction of an inconsistent prior statement made by the plaintiff that was used for impeachment purposes. Where the witness sought to be discredited is a party to the action, the laying of a foundation is unnecessary, as the party’s statements are treated as admissions and, as such, are received as primary evidence against him or her (see, Richardson, Evidence § 502 [Prince 10th ed]).

Further, the court erroneously admitted the notice of claim into evidence. In the complaint the plaintiff alleged that he had complied with all the conditions precedent to commencing the action. The defendant’s answer denied this allegation, except that it admitted that it had been presented with a notice of claim. At the trial, the plaintiff offered the notice of claim to establish that he had timely complied with the filing requirements thereof. Over the defendant’s objections, the court redacted the references contained in the notice of claim which related to injuries and money damages and otherwise admitted the notice of claim. The notice of claim, even as redacted, contained descriptive and conclusory accusations of negligence and its admission was clearly prejudicial (see, Kaplan v City of New York, 10 AD2d 319).

Contrary to the defendant’s contention, however, we do not find that the trial court acted in a partial manner. Moreover, under the facts of this case, there is no indication that the court coerced the jury in reaching a verdict or that the court’s charge was improper.

Nevertheless, in light of the errors committed by the court, the defendant was deprived of a fair trial, and a new trial is granted. O’Brien, J. P., Pizzuto, Santucci and Joy, JJ., concur.

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—In a negligence action to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Supreme Court, Kings County (Yoswein, J.), entered April 19, 1994, which, after a jury trial on the issue of liability finding the defendant 90% at fault and the plaintiff 10% at fault in the happening of the accident, is in favor of the plaintiff and against it.

Ordered that the interlocutory judgment is reversed, on the law, and a new trial is granted, with costs to abide the event.

The trial court improperly ruled that the defense counsel was required to lay a foundation for the introduction of an inconsistent prior statement made by the plaintiff that was used for impeachment purposes. Where the witness sought to be discredited is a party to the action, the laying of a foundation is unnecessary, as the party’s statements are treated as admissions and, as such, are received as primary evidence against him or her (see, Richardson, Evidence § 502 [Prince 10th ed]).

Further, the court erroneously admitted the notice of claim into evidence. In the complaint the plaintiff alleged that he had complied with all the conditions precedent to commencing the action. The defendant’s answer denied this allegation, except that it admitted that it had been presented with a notice of claim. At the trial, the plaintiff offered the notice of claim to establish that he had timely complied with the filing requirements thereof. Over the defendant’s objections, the court redacted the references contained in the notice of claim which related to injuries and money damages and otherwise admitted the notice of claim. The notice of claim, even as redacted, contained descriptive and conclusory accusations of negligence and its admission was clearly prejudicial (see, Kaplan v City of New York, 10 AD2d 319).

Contrary to the defendant’s contention, however, we do not find that the trial court acted in a partial manner. Moreover, under the facts of this case, there is no indication that the court coerced the jury in reaching a verdict or that the court’s charge was improper.

Nevertheless, in light of the errors committed by the court, the defendant was deprived of a fair trial, and a new trial is granted. O’Brien, J. P., Pizzuto, Santucci and Joy, JJ., concur.

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221 A.D.2d 625, 634 N.Y.S.2d 168, 1995 N.Y. App. Div. LEXIS 12465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viera-v-new-york-city-transit-authority-nyappdiv-1995.

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