| Seaberg v North Shore Lincoln-Mercury, Inc. |
| 2011 NY Slip Op 05688 [85 AD3d 1148] |
| June 28, 2011 |
| Appellate Division, Second Department |
| Martha Seaberg, Appellant, v North ShoreLincoln-Mercury, Inc., Respondent. |
—[*1] Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (MaureenQuinn of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Suffolk County (Sweeney, J.), entered December 22, 2009, which, upon ajury verdict on the issue of liability, is in favor of the defendant and against her dismissing thecomplaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, anda new trial on the issue of liability is granted.
The plaintiff alleges that, on March 2, 2005, she slipped and fell on ice in the defendant'sparking lot. She commenced this action against the defendant to recover damages for personalinjuries, alleging that the defendant was liable because it negligently maintained its property. InOctober 2009 the matter proceeded to a jury trial on the issue of liability.
On her direct case, the plaintiff testified that, as she fell, she saw and felt ice on the ground.In addition, she presented the testimony of witness Brian Pina, who had been employed by thedefendant as a mechanic on the date of her accident, and who had called 911 approximately twominutes after the accident.
Before Pina testified, the plaintiff sought to admit into evidence a tape of Pina's 911 callunder the present sense impression or excited utterance exceptions to the hearsay rule. Inopposition, the defendant quoted from Pina's deposition testimony, in which he had stated,"somebody said to call [911]. A lady fell in the parking lot." Defense counsel argued that thistestimony demonstrated that Pina had not seen the accident and, accordingly, any statement hemay have made that was recorded on the 911 tape was not within one of the proffered exceptionsto the hearsay rule to the extent that it may have described how the accident occurred. TheSupreme Court agreed with defense counsel, and denied the plaintiff's request to admit the tapeof Pina's 911 call under the present sense impression or excited utterance exceptions to thehearsay rule.
Pina proceeded to testify under direct examination that it was "very hard to remembersomething that happened back in 2005. A lot of events [have] taken place since 2005, and this isnot [*2]something that's freshly on top of my head." He thentestified that, on March 2, 2005, after he learned that an incident had occurred on the premises, infront of the garage door, he went to the incident location, where he saw the plaintiff and hiscoworker, Ron Weber. Pina stated that "[v]ery little" of the incident stood out in his memory.
Pina did recall, however, waiting at the scene for approximately 15 minutes until anambulance arrived. He recalled that, during that time, he looked around and "[t]o the best of [his]knowledge, there was no ice" on the ground.
After Pina gave this testimony, the plaintiff's counsel requested a bench conference, afterwhich counsel stated, on the record, that Pina had just testified that he had seen no ice on theground immediately after the accident, but in his prior deposition testimony, he admitted tellingthe 911 operator that he had seen "ice on the ground that caused [plaintiff] to slip and fall." TheSupreme Court then explained, on the record, that it had already ruled that the 911 tape wasinadmissible. The plaintiff's counsel replied that he was merely attempting to elicit, from Pina,testimony that "he actually made the [911] call that [plaintiff] slipped and fell on ice[,]" and, ascounsel understood it, although the 911 tape was inadmissible, Pina could nevertheless testifythat he had made the 911 call. The Supreme Court replied that if the plaintiff's counsel elicited,from Pina, inconsistent testimony regarding the incident, then it would consider whether the 911tape could be used to refresh Pina's recollection.
The defense asserted that the plaintiff's counsel was mischaracterizing Pina's depositiontestimony. Defense counsel then quoted from a portion thereof, in which Pina testified both thathe did not recall seeing ice on the ground and that the content of the 911 tape did not refresh hisrecollection about the incident.
After a brief recess, the plaintiff's counsel asked Pina what he had told the 911 operator, andPina replied, "I said—I don't remember. I can't put the words together now. I believe I saidsomebody fell." Pina stated that he had no independent recollection about how the plaintiff's falloccurred, and did not remember if he had told the 911 operator how the fall had occurred.
Outside the jury's presence, the plaintiff requested the use of the 911 tape to refresh Pina'srecollection as to what he had told the 911 operator about how the accident had occurred, i.e.,that the plaintiff slipped and fell on ice. Defense counsel objected on the grounds that Pina hadtestified on direct examination only that "I believe I said somebody fell[,]" and that hisrecollection could not "be refreshed by anything." The Supreme Court agreed with the defendant.It further explained that since it had already ruled that the 911 tape was inadmissible, allowingthe plaintiff to refresh Pina's recollection with the inadmissible 911 tape would render its earlierevidentiary ruling "nonsense."
Upon cross-examination by the defendant, his former employer, Pina went on to testify thathe had not witnessed the accident.
The jury returned a verdict in favor of the defendant on the issue of liability. Thereafter, theSupreme Court entered a judgment in favor of the defendant and against the plaintiff dismissingthe complaint. The plaintiff appeals and we reverse.
On appeal, the plaintiff contends that the judgment must be reversed and that a new trial iswarranted because Pina's statement on the 911 tape falls within the present sense impressionexception to the hearsay rule or, alternatively, that she should have been allowed to refresh Pina'srecollection with the 911 tape and admit the 911 tape into evidence as a prior inconsistentstatement. In opposition, the defendant contends that all of the plaintiff's arguments are withoutmerit because Pina did not witness the accident.
The present sense impression exception to the hearsay rule applies when the declarantdescribes events as he or she is perceiving the event or condition, or immediately thereafter(see People v Vasquez, 88 NY2d 561, 575 [1996]; People v Brown, 80 NY2d729, 732 [1993]; Lee v City of New York, [*3]40 AD3d1048, 1049 [2007]; Matter ofTalisveyber v Motor Veh. Acc. Indem. Corp., 16 AD3d 425, 426 [2005]). Thisexception is premised on the likelihood that the subject declaration is reliable "because thecontemporaneity of the communication minimizes the opportunity for calculated misstatement aswell as the risk of inaccuracy from faulty memory" (People v Vasquez, 88 NY2d at 574;see People v Brown, 80 NY2d at 732-733). Some corroborating evidence of thedeclarant's descriptions is required for this exception to apply (see People v Vasquez, 88NY2d at 574-575; People v Brown, 80 NY2d at 734, 736). Here, Pina did not witness theaccident, but arrived at the scene after the fall. Thus, contrary to the plaintiff's contention, anystatements Pina may have made to the 911 operator about how the accident occurred were notpresent sense impressions of that issue, as he did not perceive the accident at all (see People vVasquez, 88 NY2d at 574; People v Brown, 80 NY2d at 732; Matter ofTalisveyber v Motor Veh. Acc. Indem. Corp., 16 AD3d at 426). Accordingly, the SupremeCourt properly denied the plaintiff's request to admit the 911 tape into evidence under the presentsense impression exception to the hearsay rule.
We agree with the plaintiff, however, that the Supreme Court should have allowed her torefresh Pina's recollection with the 911 tape. At trial, Pina explained that he had no independentrecollection of the incident. Such testimony was sufficient to allow the plaintiff to play the 911tape outside the presence of the jury and allow Pina to refresh his recollection about what he hadtold the 911 operator (see People v Neff, 287 AD2d 809, 810 [2001]; People vSellan, 143 AD2d 690 [1988]; People v Luchey, 221 AD2d 936, 937 [1995];Newman v Great Atl. & Pac. Tea Co., 100 AD2d 538, 539 [1984]; People vBetts, 272 App Div 737, 741 [1947], affd 297 NY 1000 [1948]; Fisch on New YorkEvidence §§ 145, 332 [2d ed, 2008 Supp]; see also People v Bonsauger, 91AD2d 1001, 1002 [1983]; cf. People v Henry, 297 AD2d 585, 586 [2002]).
The plaintiff also contends that the 911 tape should have been admitted as a priorinconsistent statement since, at trial, Pina testified that he did not observe any ice during the 15minutes he stood near the plaintiff waiting for the ambulance to arrive, which was inconsistentwith statements he made to the 911 operator. We agree with the plaintiff. Here, the plaintiff laidthe proper foundation for the introduction of the 911 tape as a prior inconsistent statement byquestioning Pina as to the contents of the 911 tape so that he could explain any inconsistency(see Prince, Richardson on Evidence § 6-411 [a] [Farrell 11th ed]; People vWise, 46 NY2d 321, 326 [1978]; People v Longo, 151 AD2d 786 [1989]; cf.People v Wilkins, 221 AD2d 392 [1995]). Upon the plaintiff's laying of such foundation, theSupreme Court should have admitted the 911 tape into evidence as a prior inconsistent statementby Pina for the limited purpose of allowing the plaintiff to impeach his credibility (see Peoplev Wise, 46 NY2d at 326; Newman v Great Atl. & Pac. Tea Co., 100 AD2d at 539).
Accordingly, the judgment must be reversed, the complaint must be reinstated, and a newtrial on the issue of liability must be conducted.
In light of our determination, we need not reach the parties' remaining contentions.Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.