        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

181
CA 15-00755
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


TERRY DUNN, PLAINTIFF-APPELLANT,

                    V                               MEMORANDUM AND ORDER

DARNELL GARRETT, NIAGARA FRONTIER TRANSIT
METRO SYSTEM, INC., AND NIAGARA FRONTIER
TRANSPORTATION AUTHORITY, DEFENDANTS-RESPONDENTS.
(APPEAL NO. 2.)


CAMPBELL & SHELTON, LLP, EDEN, MAGAVERN MAGAVERN GRIMM, LLP, BUFFALO
(EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.

DAVID J. STATE, GENERAL COUNSEL, BUFFALO (VICKY-MARIE J. BRUNETTE OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered October 17, 2014 in a personal injury action.
The judgment awarded plaintiff the sum of $26,605.00 as against
defendants.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, those parts of the
motion seeking to set aside the verdict and a new trial are granted,
and a new trial is granted on the issues of causation, serious injury,
and damages.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle she was driving was
struck from behind by a passenger bus while the vehicle was stopped at
a red light. The bus was operated by defendant Darnell Garrett and
owned by the other defendants. Defendants conceded the issue of
negligence, and a trial was held on the issues of causation, serious
injury, and damages. The jury found that plaintiff did not suffer a
serious injury as a result of the accident (see generally Insurance
Law § 5102), but awarded plaintiff economic damages. Plaintiff moved
to set aside the verdict, for a directed verdict on the issue of
serious injury, and for a new trial on the issue of damages or,
alternatively, for “a new trial as to all remaining issues,” but
Supreme Court denied that motion. Although plaintiff concedes on
appeal that there was sufficient evidence to support the jury’s
verdict, she contends that the court erred in denying her motion on
the grounds that defense counsel’s improper attacks on her
credibility, along with the court’s confusing jury instructions,
denied her a fair trial. We agree with plaintiff that she was denied
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                                                         CA 15-00755

a fair trial.

     It is well settled that a cross-examiner at trial is “bound by
the answers of the witness to questions on collateral matters inquired
into solely to affect credibility” (Jerome Prince, Richardson on
Evidence § 6-305 [Farrell 11th ed 1995]), and extrinsic evidence
cannot be used to impeach a witness’s credibility after the witness
has provided an answer with which the cross-examiner is unsatisfied
(see Badr v Hogan, 75 NY2d 629, 634-636; Muye v Liben, 282 AD2d 661,
662). Here, defense counsel asked plaintiff during cross-examination
whether she had failed an employment-related drug test, a collateral
issue relevant only to plaintiff’s credibility. In response,
plaintiff testified that the test result was a “false positive” that
was proved false upon retesting. Defense counsel then violated the
collateral evidence rule when she not only referred to a lack of
evidence supporting plaintiff’s assertion, but introduced the drug
test result in evidence in an attempt to impeach plaintiff’s
credibility (see Badr, 75 NY2d at 635; Huff v Rodriguez, 88 AD3d 1274,
1275).

     The impact of that improper conduct was compounded when defense
counsel thereafter questioned defendant’s medical expert, over
plaintiff’s objection, about “drug use history” notations in
plaintiff’s medical records that, according to the expert, raised
questions as to plaintiff’s “credibility.” We conclude that the court
erred in permitting the expert to opine on plaintiff’s credibility
(see Kravitz v Long Is. Jewish-Hillside Med. Ctr., 113 AD2d 577, 580-
581), and further erred in permitting the expert to testify about
entries in another doctor’s records concerning allegedly inconsistent
details about the accident. Those entries, which defense counsel
mentioned in summation, “were germane neither to treatment nor to
diagnosis and were therefore not admissible under the business records
exception to the hearsay rule” (Musaid v Mercy Hosp. of Buffalo, 249
AD2d 958, 959) and, because there is nothing in the record to
establish that plaintiff was the source of the information contained
in them, the entries are not admissible as admissions (see id. at 959-
960; see also Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96).

     Finally, despite the court’s pretrial ruling precluding
defendants from questioning plaintiff about a personal injury claim
she had filed in connection with a prior accident, defense counsel,
over objection, asked plaintiff if she had been involved in any “legal
action” related to her “neck and/or back condition.” Because evidence
of prior accidents and lawsuits related thereto “may not [be used to]
. . . demonstrate that plaintiff is litigious and therefore unworthy
of belief” (Molinari v Conforti & Eisele, 54 AD2d 1113, 1114), it was
error for the court to allow that questioning. In our view, the
improper attacks on plaintiff’s credibility, viewed as a whole, denied
plaintiff a fair trial.

     In light of our determination, we need not address plaintiff’s
remaining contentions.
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                                           CA 15-00755




Entered:   April 29, 2016         Frances E. Cafarell
                                  Clerk of the Court
