Opinion
September 14, 1995
Appeal from the Supreme Court, Bronx County (Jerry Crispino, J.).
The trial court erred in not allowing the jury to hear key evidence in the form of a statement made at the time of the accident, and in denying defendant's request to charge the jury as to the "emergency doctrine".
The statement made at the time of the accident by plaintiff's companion was erroneously precluded from evidence as inadmissible hearsay. In fact, the statement was not hearsay, but instead constituted a "verbal * * * act" ( People v Salko, 47 N.Y.2d 230, 239-240), which would have been probative of defendant's theory that plaintiff's purported injury was a sham. Preclusion of this key piece of evidence was not harmless error inasmuch as it arguably affected the outcome of the trial under defendant's view of the evidence ( Marine Midland Bank v Russo, 50 N.Y.2d 31, 43).
The jury should have also been allowed to consider whether the occurrence at issue was an emergency as defined by the "emergency doctrine" ( Rivera v New York City Tr. Auth., 77 N.Y.2d 322, 326-327). The evidence presented reasonably allowed for such an inference yet the trial court denied the request for a jury charge as to the emergency doctrine. The fact of the bus operator's awareness that at the particular intersection, motorists often made sudden right turns from the left lane, creating a hazard with buses leaving the bus stop there, did not lessen the potential emergency quality of these circumstances ( see, Ferrer v Harris, 55 N.Y.2d 285, 290-292, mot to amend remittitur granted 56 N.Y.2d 737; Rivera v New York City Tr. Auth., supra; Sonntag v Dor-Vac Corp., 192 A.D.2d 594, lv denied 82 N.Y.2d 654). This error also prejudiced the outcome of the trial under defendant's view of the evidence and warrants reversal.
Concur — Wallach, J.P., Kupferman, Nardelli and Williams, JJ.