| Nelson v Friends of Associated Beth Rivka Sch. forGirls |
| 2014 NY Slip Op 04908 [119 AD3d 536] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Leah Nelson, an Infant, by Her Mother and NaturalGuardian, Oshrit Nelson, et al., Appellants, v Friends of Associated Beth RivkaSchool for Girls et al., Respondents. |
Adam W. Scheinbach (Pollack, Pollack, Isaac & De Cicco, New York, N.Y.[Brian J. Isaac and Jillian Rosen], of counsel), for appellants.
Rutherford & Christie, LLP, New York, N.Y. (David S. Rutherford of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froma judgment of the Supreme Court, Kings County (Partnow, J.), entered June 28, 2012,which, upon a jury verdict, is in favor of the defendants and against them dismissing thecomplaint.
Ordered that the judgment is reversed, on the law, with costs, the complaint isreinstated, and the matter is remitted to the Supreme Court, Kings County, for a newtrial.
The infant plaintiff, Leah Nelson, by her mother and natural guardian, and hermother individually, commenced this action against Friends of Associated Beth RivkaSchool for Girls and Beth Rivka Preschool, inter alia, to recover damages for personalinjuries allegedly sustained by the infant plaintiff on the playground of the preschooloperated by the defendants. The infant plaintiff was a student at the preschool at the timeof the incident. The plaintiffs alleged, inter alia, that the infant plaintiff was injured as aresult of the defendants' negligence in the supervision of the infant plaintiff, who waspermitted to play on monkey bars, from which she fell, thus sustaining injuries. Thedefendants effectively conceded that monkey bars were not age-appropriate playgroundequipment for preschool children, inasmuch as the two teachers who purportedlysupervised preschool children on the playground testified at trial that the monkey barswere off-limits to preschool children. At trial, however, the defendants contended thatthe infant plaintiff did not fall from the monkey bars. This contention was advanced bythose two teachers, who testified that the infant plaintiff fell from an orange ladder thatwas suitable for preschool children to climb.
At trial, the plaintiffs made an offer of proof, pursuant to which they sought tointroduce into evidence an entry in an emergency room record that was allegedly madeon the date of the accident, wherein, according to the plaintiffs, the infant plaintiff toldthe emergency room physician that she fell from the monkey bars. The defendantsobjected. In response, the plaintiffs' counsel argued that, during jury selection, thedefendants had suggested that the infant plaintiff was improperly "coached," and counselcontended that the defendants would again attempt to discredit the testimony of the infantplaintiff as a recent fabrication. The plaintiffs' counsel further argued that the entry in theemergency room record was germane to the treatment of the infant plaintiff. The [*2]court sustained the defendants' objection, and denied theplaintiffs' proffer.
As anticipated by the plaintiffs in making their offer of proof, the defendantschallenged the infant plaintiff's credibility by asking her, inter alia, whether she knewthat she was "going to have to . . . talk about the monkey bars" in court, andwhether she had been told "what to tell everybody." The defendants also confronted theinfant plaintiff with several lines of her deposition testimony, in which sheacknowledged that she did not remember what she was doing when she was injured.
After the close of evidence, the plaintiffs renewed their request to admit theemergency room medical record into evidence. The court adhered to its earlier ruling.Thereafter, during their summation, the defendants argued that the infant plaintiff did notactually remember the incident and, therefore, she had "been told what to say." The juryfound that the defendants were not negligent.
The Supreme Court erred in precluding the plaintiffs from admitting the profferedmedical record into evidence and in denying their renewed request to introduce themedical record. Ordinarily, "[t]he testimony of an impeached or discredited witness maynot be supported and bolstered by proving that he [or she] has made similar declarationsout of court" (Crawford v Nilan, 289 NY 444, 450 [1943]; see People vBuie, 86 NY2d 501, 510-511 [1995]). However, an out-of-court statement "made ata time before a motive to falsify exists may be received in evidence after the testimony ofthe witness is attacked as a recent fabrication" (Lichtrule v City Sav. Bank ofBrooklyn, 29 AD2d 565, 565-566 [1967]; see People v Buie, 86 NY2d at511; McGloin v Golbi, 49AD3d 610, 611 [2008]). Here, the focus of the defense was not merely that theinfant plaintiff was mistaken or that she was confused or could not recall her accident,but that she was coached to tell a "false story well after the event" and, as such, it was arecent fabrication (People v Singer, 300 NY 120, 124 [1949]; see McGloin vGolbi, 49 AD3d at 611; Lichtrule v City Sav. Bank of Brooklyn, 29 AD2d at565-566; cf. Pomer v Chen, 187 AD2d 497, 497-498 [1992]). Moreover, thestatement fell within another exception to the hearsay rule, as it was germane to theinfant plaintiff's medical treatment on the date of the incident (see People v Ortega, 15 NY3d610 [2010]; Williams v Alexander, 309 NY 283 [1955]; Berrios v 735 Ave. of the Ams.,LLC, 103 AD3d 472 [2013]; Kamolov v BIA Group, LLC, 79 AD3d 1101 [2010]; see also People v Clarke, 101AD3d 897, 898 [2012]; People v Mack, 89 AD3d 864, 866 [2011]; cf. Sermos v Gruppuso, 95AD3d 985, 986 [2012]).
The issue of whether the infant plaintiff's accident occurred because she fell from themonkey bars, as opposed to the orange ladder, was vital to the plaintiffs' proof of theircase, as it was to the defense, and the jury's determination with respect to that issuenecessarily hinged on the jury's determinations of the credibility of the infant plaintiffand the two teachers (see Lichtrule v City Sav. Bank of Brooklyn, 29 AD2d 565,566 [1967]). Thus, under these circumstances, the admission of the statement containedin the emergency room record would have had a substantial influence in bringing about adifferent verdict (see CPLR 2002; see Cherico v City of New York, 88AD2d 889, 889-890 [1982]; cf. Crawford v Nilan, 289 NY at 449; Khan vGalvin, 206 AD2d 776, 777 [1994]). Accordingly, the Supreme Court's error was notharmless.
The plaintiffs' remaining contention need not be reached in light of ourdetermination. Mastro, J.P., Skelos, Cohen and LaSalle, JJ., concur.