SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 12, 1968
SAM DASCOLI, APPELLANT,
MILTON INDENBAUM, RESPONDENT, ET AL., DEFENDANT
Appeal by plaintiff from (1) an order of the Supreme Court, Nassau County, dated April 10, 1967, which granted defendant Indenbaum's motion, made at the close of plaintiff's case upon a jury trial, to dismiss the complaint and (2) the judgment entered thereon on April 3, 1968.
Rabin, Hopkins and Benjamin, JJ., concur; Beldock, P. J., and Christ, J., dissent and vote to affirm the order and the judgment.
No questions of fact have been considered. In our opinion, the jury could reasonably have drawn the inference that defendant Indenbaum was guilty of malpractice (Prince v. City of New York, 21 A.D.2d 668). The record book of Dr. Iervolino should be admitted into evidence if the opinion contained therein was made by Dr. Boyd and not by Dr. Iervolino himself and if a proper foundation is laid for its introduction as a prior inconsistent statement (Larkin v. Nassau Elec. R. R. Co., 205 N. Y. 267, 269).
Order and judgment reversed, on the law, and new trial granted, with costs to abide the event.
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