Berrios v. TEG Management Corp.
Opinion of the Court
In an action to recover damages for personal injuries, the defendant TEG Management Corp. appeals from an order of the Supreme Court, Queens County (Kelly, J.), dated March 18, 2005, which granted that branch of the plaintiffs motion pursuant to CPLR 4404 (a) which was to set aside a jury verdict in its favor on the issue of liability and for a new trial.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when he fell from an unsecured ladder on a roof being prepared for repairs. Nobody witnessed the plaintiffs fall. He commenced this action against, among others, the defendant TEG Management Corp. (hereinafter TEG) to recover damages for violations of Labor Law
A hearsay entry in a hospital record as to the happening of an injury is admissible at trial, even if not germane to diagnosis or treatment, if the entry is inconsistent with a position taken by a party at trial and there is evidence to connect the party to the entry (see Cuevas v Alexander’s, Inc., 23 AD3d 428 [2005]; Echeverria v City of New York, 166 AD2d 409 [1990]; Gunn v City of New York, 104 AD2d 848 [1984]). Here, TEG did not present evidence sufficient to establish that the plaintiff was the source of the entry indicating that his injuries arose from a trip and fall. Further, the erroneous admission of the entry cannot be deemed harmless, as the entry related to the very issue to be determined by the juiy, that is, how the accident happened (see Cuevas v Alexander’s, Inc., supra; Echeverria v City of New York, supra; Gunn v City of New York, supra). Thus, a new trial was properly granted. Florio, J.P., Crane, Ritter and Fisher, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.