| Rivera v New York City Tr. Auth. |
| 2008 NY Slip Op 06684 [54 AD3d 545] |
| September 2, 2008 |
| Appellate Division, First Department |
| Yvette Rivera, Appellant, v New York City TransitAuthority et al., Respondents. Lisa M. Ingrisano, Appellant, v New York City Transit Authorityet al., Respondents. Donald Puglisi, Appellant, v New York City Transit Authority et al.,Respondents. Wei De Fan, Appellant, v Manhattan and Bronx Surface Transit OperatingAuthority et al. Respondents. Odette Bobb, Appellant, v Antonio Battista et al., Respondents.Damika Brehon, Appellant, v New York City Transit Authority et al.,Respondents. |
—[*1] David Samel, New York, for respondents.
Judgments, Supreme Court, New York County (Robert D. Lippmann, J.), entered May 24,2006, which, upon a jury verdict, dismissed the complaint in each of the above-captioned actions,unanimously reversed, on the law, without costs, the complaints reinstated, and the mattersremanded for a new trial. Appeals from order, same court and Justice, entered on or aboutFebruary 27, 2006, which, inter alia, denied a motion and cross motion for judgmentnotwithstanding the verdict or for a new trial, unanimously dismissed, without costs, assubsumed in the appeals from the judgments.
Plaintiffs in these actions allege that they were injured in an accident that occurred when theindividual defendant, an employee of defendant New York City Transit Authority (NYCTA),passed out while operating a bus. Plaintiffs' actions, along with others arising from the sameincident, were consolidated for trial on the issue of liability. The sole question put to the jury wasas follows: "Did the defendant [bus driver] . . . have a sudden, unanticipated,medical emergency before causing the accident?" The jury returned a verdict answering thequestion in the affirmative.
Plaintiffs now appeal from the judgments dismissing their respective complaints pursuant tothe jury's verdict. They argue, inter alia, that the trial court erred in permitting defense counsel,over plaintiffs' objection, to read into evidence portions of the pretrial testimony given atdepositions or General Municipal Law § 50-h hearings by nine plaintiffs, six of whom hadsettled before trial. Plaintiffs point out that none of them received notice of, or was representedat, the depositions and section 50-h hearings in other actions, and, on that basis, contend thateach deposition or section 50-h hearing transcript is hearsay as to the plaintiffs in the otheractions. For the reasons set forth below, we agree.[*2]
CPLR 3117 (a) (2) provides that "the depositiontestimony of a party or of any person who was a party when the testimony was given. . . may be used [at trial] for any purpose by any party who was adversely interestedwhen the deposition testimony was given or who is adversely interested when the depositiontestimony is offered in evidence." The statute expressly provides, however, that the use of adeposition is authorized only "so far as admissible under the rules of evidence" (CPLR3117 [a] [emphasis added]). Thus, even assuming (without deciding) that CPLR 3117 (a) (2),unlike CPLR 3117 (a) (3) (setting forth the conditions for the use of "the deposition of anyperson"), permits the use of the deposition of a party against another party who did not receivenotice of the deposition and was not present or represented at its taking (see Bianchi v FederalIns. Co., 142 Misc 2d 82 [Sup Ct, NY County 1988]; but see Andrusziewicz v Atlas, 13 AD3d 325 [2004];Siniscalchi v Central Gen. Hosp., 80 AD2d 849 [1981]; Weinstein-Korn-Miller, NY CivPrac ¶ 3117.05 [2d ed]), deposition testimony otherwise satisfying the requirements ofCPLR 3117 (a) (2) still is not admissible unless it is shown that, as to each party against whomthe deposition is to be used, it falls within an exception to the rule against hearsay (see UnitedBank v Cambridge Sporting Goods Corp., 41 NY2d 254, 264 [1976]). No such showing wasmade here.
While the deposition testimony of each plaintiff was admissible against that plaintiff as anadmission (see Prince, Richardson on Evidence §§ 8-201, 8-202 [Farrell11th ed]), the status of such testimony as an admission of the plaintiff who testified did notrender it admissible against the other plaintiffs (id. at § 8-203; see alsoClaypool v City of New York, 267 AD2d 33, 35 [1999] [General Municipal Law §50-h testimony was not admissible at trial against parties who "were not notified and were notpresent at the hearing"]).[FN*]Neither were the depositions admissible under the hearsay exception for declarations against thedeclarant's interest, since none of the deponents was shown to have been unavailable to testify attrial (see Prince, Richardson § 8-404). Further, since none of the deponentstestified at trial before his or her deposition was read into evidence, the deposition testimony wasnot admissible as a trial witness's prior inconsistent statement (cf. Letendre v Hartford Acc. &Indem. Co., 21 NY2d 518 [1968]; Campbell v City of Elmira, 198 AD2d 736, 738[1993], affd 84 NY2d 505 [1994]; Prince, Richardson § 8-104).
We reject defendants' argument that plaintiffs stipulated to the admissibility at trial oftestimony given by any plaintiff at a deposition or General Municipal Law § 50-h hearing.In October 2004, counsel in all actions arising from the subject incident (nine of which were thenpending) entered into a stipulation providing that all actions would be consolidated for a singletrial on the issue of liability and that two of the eight law firms that then represented plaintiffs inthose actions would represent all plaintiffs at the liability trial. The stipulation further provided:"If the Transit Authority intends to call any of the Plaintiffs or read the testimony of any of thoseplaintiffs from either a 50-H hearing or a deposition[,] the attorney representing that individualplaintiff will also be allowed to participate in the trial." [*3]Nothing in the above-quoted provision indicates an intention toexpand the admissibility at trial of a plaintiff's deposition or section 50-h hearing testimonybeyond what would have been the case in the absence of the stipulation.
A new trial is required because, on this record, the admission of the deposition and GeneralMunicipal Law § 50-h testimony cannot be considered harmless error. At trial, threeplaintiffs testified that, as they boarded the bus before the accident, they observed that thedefendant bus driver appeared to be in physical distress of some sort. In contrast, the pretrialtestimony read into the record by defendants included statements by several plaintiffs (none ofwhom testified at trial) to the effect that they did not notice anything unusual about the driverfrom the time they boarded the bus until the accident occurred. In his closing argument at trial,defense counsel referred the jury to this pretrial testimony as a basis for finding that the driver'sloss of consciousness had been sudden and unanticipated. Indeed, defendants' appellate brief, inarguing that the verdict is supported by sufficient evidence, specifically points out that the jurymay have been influenced by the pretrial testimony of the witnesses who did not notice anythingamiss with the driver before the accident.
We reject plaintiffs' argument that the trial court erred in giving the jury an emergency chargebased on PJI 2:14. As we stated in deciding a prior appeal in one of these actions, the issue to betried was "whether defendant bus driver's loss of vehicular control was attributable to anunforeseeable medical emergency" (Rivera v New York City Tr. Auth., 11 AD3d 333 [2004]). It is ofno moment that the bus driver's loss of consciousness did not arise from circumstances externalto the driver himself, since evidence was presented from which the jury could find that his loss ofconsciousness was "a sudden and unforeseen emergency not of the actor's own making"(Caristo v Sanzone, 96 NY2d 172, 175 [2001]; see also McGinn v New York City Tr.Auth., 240 AD2d 378, 379 [1997] [a vehicle operator "who experiences a sudden medicalemergency will not be chargeable with negligence provided that the medical emergency wasunforeseen" (internal quotation marks and citations omitted)]). For this reason, plaintiffs'argument that they were entitled to judgment notwithstanding the verdict is without merit.
Finally, the record does not support plaintiffs' claims of judicial misconduct.
Since a new trial is required, we need not reach plaintiffs' remaining claims of error.Concur—Friedman, J.P., Gonzalez, McGuire and Moskowitz, JJ. [See 12 Misc 3d1167(A), 2006 NY Slip Op 51089(U).]
Footnote *: Thus, while each ofplaintiffs-appellants Puglisi, Ingrisano and Brehon is not aggrieved by the admission intoevidence of his or her own deposition testimony, each of them is entitled to complain of theadmission against him or her of the deposition testimony of the other two and of the depositiontestimony of the six plaintiffs who settled before trial.