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CARMEN D. DEL TORO v. HENRY CARROLL (12/16/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT 1969.NY.44006 <http://www.versuslaw.com>; 306 N.Y.S.2d 95; 33 A.D.2d 160 December 16, 1969 CARMEN D. DEL TORO, AS ADMINISTRATRIX OF THE ESTATE OF EDUARDO DEL TORO, DECEASED, RESPONDENT,v.HENRY CARROLL, RESPONDENT, AND GILBERTO R. CINTRON, APPELLANT. (ACTION NO. 1.); GILBERTO CINTRON, APPELLANT, V. HENRY CARROLL, RESPONDENT. (ACTION NO. 2.) Appeals by defendant-appellant in action No. 1 and by plaintiff-appellant in action No. 2 from a judgment of the Supreme Court in favor of plaintiff in action No. 1 against appellant and in favor of defendant-respondent against plaintiff therein and in favor of defendant in action No. 2 against plaintiff-appellant, entered February 24, 1969 in Bronx County, upon a verdict rendered at a Trial Term (Edward J. Greenfield, J.). Sheila L. Birnbaum of counsel (Emile Z. Berman and A. Harold Frost, attorneys), for appellant in Action No. 2. Donald J. Sheehan of counsel (Gill & Sheehan, attorneys), for appellant in Action No. 1. Wilbur S. Talisman for Carmen D. Del Toro, respondent. Dolores Gerber of counsel (DeSantis, McGarry & Hargous, attorneys), for Henry Carroll, respondent. McNally, J. Eager, J. P., and Tilzer, J., concur with McNally, J.; Steuer, J., dissents in opinion in which Markewich, J., concurs. Author: Mcnally


Appeals by defendant-appellant in action No. 1 and by plaintiff-appellant in action No. 2 from a judgment of the Supreme Court in favor of plaintiff in action No. 1 against appellant and in favor of defendant-respondent against plaintiff therein and in favor of defendant in action No. 2 against plaintiff-appellant, entered February 24, 1969 in Bronx County, upon a verdict rendered at a Trial Term (Edward J. Greenfield, J.).

McNally, J. Eager, J. P., and Tilzer, J., concur with McNally, J.; Steuer, J., dissents in opinion in which Markewich, J., concurs.

Author: Mcnally

 The jury returned a verdict in Action No. 1 in favor of plaintiff Eduardo Del Toro against defendant Gilberto R. Cintron in the sum of $20,000. In Action No. 2 the jury returned a verdict in favor of defendant Henry Carroll against plaintiff Cintron.

The consolidated actions arose out of an accident which occurred on June 10, 1967 at 1:20 A.M. on the Long Island Expressway in Nassau County. The record indicates a sharp conflict in the testimony as to the manner of the happening of the accident. It is claimed that Cintron was driving his automobile in an easterly direction in the right-hand lane of the Expressway. There were two passengers in Cintron's vehicle, one Sanchez, seated in the front to the driver's right, and Del Toro, who was seated in the rear.

Defendant Carroll was also proceeding in an easterly direction in a Dodge station wagon with a U-Haul trailer attached to it. The trailer was four feet wide and seven feet in length and was loaded with furniture. Carroll was accompanied by his two daughters and two other children. The accident happened in a darkened area.

Cintron claims he was traveling in the right-hand lane of the Expressway at about 45 miles an hour when a vehicle with a trailer suddenly passed him in the center lane at a high rate of speed. The vehicle suddenly and without warning veered into the right-hand lane and cut him off. It is claimed that the trailer which was attached to the vehicle struck Cintron's vehicle, causing his head to be struck and loss of consciousness. As a result of the impact, Cintron's motor vehicle went out of control across the center divider of the highway into the westbound lane and then proceeded across the grass divider and through two fences until it was brought to a stop by Sanchez. Appellant's testimony was corroborated by Sanchez, his passenger.

At the time of the trial Sanchez was a member of the U. S. Armed Forces in Vietnam and his previous testimony was read into evidence. His testimony was to the effect that the Cintron vehicle was proceeding at all times in the extreme right lane of traffic and that a station wagon with a trailer attached to it proceeding at a high rate of speed in the center lane passed Cintron's car and suddenly cut him off. The trailer struck the left front of Cintron's vehicle, control thereof was lost, and it crossed into the westbound lane of traffic. It crossed the highway once again when Sanchez brought it to a stop. Del Toro testified that just prior to the accident Cintron's car was on the right-hand side of the road and was going straight when the other car struck it.

Carroll on the other hand gave contrary testimony. He claimed he was traveling in the center lane when a dark shape crossed his front. He went to the left to avoid the vehicle and eventually stopped on the grass divider. He denied any contact between his vehicle or the trailer he was hauling and the Cintron automobile. He admitted he was proceeding at about 50 or 51 miles an hour. There was a printed legend on the back of the trailer that the speed limit to be used when towing the trailer was 45 miles per hour.

Carroll testified he did not see any lights approaching from the rear as he was proceeding in the center lane. His testimony was apparently in conflict with his own written report of the accident to the Motor Vehicle Bureau. His report stated: "Then he [Cintron] crossed into the lane where he had sideswiped me." In a written statement given on July 9, 1967, Carroll stated "The car that struck mine was the 1956 Chrysler of G. Cintron". Deborah Carroll, 16 at the time of the accident, a passenger in her father's vehicle, testified in corroboration of her father. This testimony in turn was contradicted by an independent witness, one John Goetz.

Cintron was injured as a result of the accident. He was unconscious at the scene of the accident and was removed to Central General Hospital where he remained until August 23, 1967. He was then transferred to St. Vincent's Hospital on August 23 and was discharged on October 28, 1967. He was readmitted to St. Vincent's Hospital on February 26, 1968 and discharged April 12, 1968. Inasmuch as the nature and extent of his injuries have no bearing on the question involved, suffice it to say that his injuries were grievous and manifold, including multiple fractures and spinal injuries.

With reference to prior hospitalizations, Cintron testified that in March, 1966 he was admitted to Fordham Hospital as a result of fainting in his bathroom after taking several sleeping pills. He also testified that he was admitted to Fordham Hospital and treated for pneumonia in March, 1967.

Counsel for defendant Carroll, over the objection of appellant's counsel, introduced records of appellant's two previous hospitalizations at Fordham Hospital. Portions of these prior hospital records referred to Cintron's alleged history of intoxication and alcoholism. Appellant's counsel objected to the introduction of these portions of the record on the ground that they were irrelevant to the issues in the case and hearsay. No objection was made to the admission of those portions of the records that referred to physical examinations and diagnosis. No evidence was offered to show who gave the history portion of the record to the person who recorded it. Cintron denied giving any of this information to the hospital on either occasion, and stated he does not know who gave the information. Appellant was unconscious at the time he was admitted to the hospital in 1966. The record shows that he was comatose at the time of his admission.

No evidence whatsoever was adduced to show that appellant was intoxicated at the time of the accident. There is no indication of intoxication either in the Central General Hospital record or St. Vincent's Hospital record or by the police officer who arrived at the accident scene. Defendant's counsel stated that the purpose of introducing the prior hospital records was to attack appellant's credibility and his capacity to drive and to provide an explanation for the accident.

In our opinion, the introduction of those portions of the hospital records showing prior incidents of intoxication was highly prejudicial and calculated to establish in the minds of the jury that appellant was intoxicated at the time of the accident, even though there was no evidence of intoxication in the case. An excerpt from the Fordham Hospital records at the time of Cintron's admission for treatment of pneumonia in March, 1967 indicates the following: "3/10/67 * * * Summary of family habits and diseases. Admitted this fifty-two year old Puerto Rican for the second ...


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