You are here: / / Statement Made Before Any Possible Motive to Falsify Should Have Been Admitted...
,

Statement Made Before Any Possible Motive to Falsify Should Have Been Admitted to Rebut Assertion of Recent Fabrication

The Second Department determined the trial court committed reversible error by excluding a statement made to medical personnel by the infant plaintiff.  It was crucial to the plaintiff’s case to demonstrate that she was injured falling from the monkey bars at the school’s playground.  The case sounded in negligent supervision and students plaintiff’s age were not permitted on the monkey bars. When receiving medical treatment plaintiff said she fell from the monkey bars and her statement was included in the medical records. The Second Department deemed the statement admissible to rebut the assertion of recent fabrication and, in addition, because the statement was germane to her treatment:

The Supreme Court erred in precluding the plaintiffs from admitting the proffered medical record into evidence and in denying their renewed request to introduce the medical record. Ordinarily, “[t]he testimony of an impeached or discredited witness may not be supported or bolstered by proving that he [or she] has made similar declarations out of court” … . However, an out-of-court statement “made at a time before a motive to falsify exists may be received in evidence after the testimony of the witness is attacked as a recent fabrication” … . Here, the focus of the defense was not merely that the infant 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 a recent fabrication … . Moreover, the statement fell within another exception to the hearsay rule, as it was germane to the infant plaintiff’s medical treatment on the date of the incident …. Nelson v Friends of Associated Beth Rivka School for Girls, 2014 NY Slip Op 04908, 2nd Dept 7-2-14

 

You might also like
A MOTION FOR SUMMARY JUDGMENT MAY BE MADE ANYTIME AFTER ISSUE IS JOINED; A JUDGE CANNOT REQUIRE THE FILING OF A NOTE OF ISSUE BEFORE A SUMMARY JUDGMENT MOTION CAN BE MADE (SECOND DEPT). ​
Nursing License Not Marital Property/Criteria Explained
DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC LIGHTS, RESULTING IN AN INTERSECTION COLLISION WHICH KILLED THE OTHER DRIVER, SUPPORTED THE DEPRAVED INDIFFERENCE MURDER CONVICTION.
Failure to Warn Defendant His Guilty Plea Could Lead to Deportation, Prior to the Supreme Court’s 2010 Decision in Padilla v Kentucky, Did Not Constitute Ineffective Assistance of Counsel
DEFENDANTS DID NOT DEMONSTRATE, PRIMA FACIE, THE UNEVEN SEWER GRATE WAS A TRIVIAL DEFECT; THEREFORE THE BURDEN OF PROOF NEVER SHIFTED TO THE PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF’S TESTIMONY THAT THE UNSECURED LADDER MOVED SUDDENLY AND TILTED TO THE LEFT WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).
Transit Authority Not Liable Under the Emergency Doctrine As a Matter of Law
AFTER WALKING OVER A TRAP DOOR, PLAINTIFF STEPPED BACK AND FELL THROUGH THE OPEN DOOR; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Amendment of Notice of Claim Including Substantive Changes to the Facts and... Village’s Actual Notice of a Sidewalk Defect Does Not Override Written...