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ALLEN D. ALBERT v. THELMA G. STUMPF (06/17/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


June 17, 1968

ALLEN D. ALBERT, APPELLANT,
v.
THELMA G. STUMPF, RESPONDENT

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered February 15, 1968, in favor of defendant upon a jury verdict.

Beldock, P. J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.

The findings of fact are affirmed. It was error to admit into evidence that portion of a police officer's accident report which set forth his opinion as to the cause of the accident (Marcus v. Greenwald, 28 A.D.2d 680; Lea v. Segreto, 23 A.D.2d 759). The trial court's subsequent curative instruction to the jury was not in language sufficiently explicit to preclude any inference that the jury might have been affected by it, in view of the highly prejudicial effect of this evidence in this close case (cf. Smulczeski v. City Center of Music & Drama, 3 N.Y.2d 498, 501; Robinson v. City of New York, 5 A.D.2d 197, 199).

Disposition

 Judgment reversed, on the law, and new trial granted, with costs to plaintiff to abide the event.

19680617

© 1998 VersusLaw Inc.



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