The Fourth Department, reversing Supreme Court, determined plaintiffs’ motion to set aside the defense verdict in this traffic accident case should have been granted. There was sharply conflicting testimony about how the accident happened and whether defendant fled the scene. A witness, Stephen, who allegedly chased defendant down after the accident was not allowed to testify that defendant appeared to be intoxicated:
We agree with plaintiffs that the court erred in excluding Stephen’s testimony that defendant exhibited indicia of intoxication during their interaction immediately after the accident and that, in his opinion, she was intoxicated. Although defendant’s failure to remain at the scene meant that Stephen was the only witness who had an opportunity to observe defendant and interact with her after the accident, the court prohibited Stephen from testifying about his observations of defendant on the ground that he was not an “expert” in signs of intoxication. Contrary to the court’s ruling, it is well settled that a lay witness may testify regarding his or her observation that another individual exhibited signs of intoxication … , and also regarding his or her opinion that another individual was intoxicated … . …
… [P]laintiffs should have been permitted to present Stephen’s testimony with respect to whether defendant appeared to be intoxicated, which would allow the jury to consider whether and to what degree alcohol impaired defendant’s senses and her ability to accurately perceive and recall the events about which she testified at trial. …
… Stephen’s proposed testimony regarding his observations of defendant, i.e., that she fumbled with her license, slurred her speech, and smelled of alcohol, was not cumulative of other evidence already before the jury … . …
Defendant testified that she did not fumble with her license, her speech was not slurred, she did not recall her eyes being “glassy,” and there was no alcohol on her breath. Thus, the excluded testimony from Stephen would have provided ” evidence in denial of some affirmative fact which [defendant] has endeavored to prove’ ” … and therefore fell within the scope of permissible rebuttal evidence. Brooks v Blanchard, 2019 NY Slip Op 05847, Fourth Dept 7-31-19