In Watch v. Gertsen (10373/10, NYLJ 1202719688567, at 1, App. Div., 2nd, decided March 4, 2015), a personal injury case involving a motor vehicle accident, a plaintiffs' motion for a new trial was granted as a result of inadmissible hearsay permitted at trial. Particularly, the trial judge allowed a New York State Trooper (who responded to the accident scene) testify and, over the plaintiffs' objections, defense counsel was permitted to elicit the following testimony from him: that the Trooper had indicated on the police accident report he prepared that each of the plaintiff motorcyclists was a contributing factor to the accident; and that he had made no such notation with respect to the defendant driver. Ultimately, the jury rendered a decision against the plaintiffs (thereby dismissing their complaint), and the plaintiffs thereafter made a motion to set aside the verdict and for a new trial.
The Appellate Division, Second Department granted plaintiff's motion for a new trial, and did so as a result of the Trooper's testimony regarding his police report notations, which the Court deemed was inadmissible hearsay. The Court held the following: "We agree with the plaintiffs that the Trooper's testimony concerning
the notations in his accident report regarding who was at fault in the
happening of the accident constituted inadmissible hearsay...[f]urthermore, contrary to the defendants' contention, the record does not
demonstrate that the plaintiffs stipulated to the admission of the
Trooper's opinion. The admission of the Trooper's opinion testimony
constituted prejudicial and reversible error because it bore on the
ultimate issue to be determined by the jury, i.e., which of the parties
was at fault in the happening of the accident (see CPLR 2002; Sanchez v.
Steenson, 101 AD3d at 983 [...])."
Salvatore R. Marino, Esq.