Wirth v. De Vito

74 A.D.2d 827, 425 N.Y.S.2d 179, 1980 N.Y. App. Div. LEXIS 10577

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 3, 1980
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Westchester County, entered December 5, 1978, which is in favor of defendant, after a jury trial limited to the issue of liability only. Judgment reversed, on the law, and new trial granted, with costs to abide the event. In light of the inadmissibility of the hospital record, the trial court erred in failing to instruct the jurors to disregard the questions put to plaintiff Daniel Wirth by defense counsel in an effort to lay a foundation for the hospital record. These questions were highly prejudicial and may well have given the jury the impression that said plaintiff had made inconsistent statements at the hospital. The trial court also erred in failing to rule on the applicability of the Yonkers Building Code. This was a question of law. The court improperly instructed the jury that it could decide whether handrails were required. As these errors may have provided the basis for the verdict against plaintiffs, the judgment must be reversed. Lazer, Gibbons and Hargett, JJ., concur; Hopkins, J. P., and Weinstein, J., dissent and vote to affirm the judgment.