Badr v. Hogan

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Meehan, J.), entered May 4, 1987, which upon denying her motion to set aside a jury verdict in favor of the defendant, dismissed the complaint on the merits.

Ordered that the judgment is affirmed, with costs.

This negligence action arises out of an accident which occurred in the apartment where the infant plaintiff resided with her family. The apartment was located in a building owned, operated and maintained by the defendant. The plaintiff alleges in the complaint as amplified in her bill of particulars that the infant’s hand was severely injured by glass from *827a window in her bedroom. It is further alleged that prior to the accident the defendant had failed to repair the window in the infant’s bedroom which was cracked and partially broken. The case pitted the defendant landlord’s testimony that the subject window was not broken prior to the accident and that he had not placed cardboard over the window to cover a hole, against the testimony of the infant plaintiffs mother that the window was partially broken and that upon her request to the defendant that he repair the window he had placed a piece of cardboard over the hole. The credibility of the plaintiff mother versus that of the defendant was thus a critical issue.

Contrary to the plaintiffs contention, we do not find that her cross-examination by the defendant’s counsel was improper or unduly prejudicial. The portion of the cross-examination with which we are concerned involved questions related to the plaintiff mother’s improper receipt of moneys from the Department of Social Services (hereinafter the DSS) resulting , in the entry of a confession of judgment in the sum of $2,654.50 against her.

The basic principles governing an examination of this kind are well established. The permissible scope of cross-examination lies within the sound discretion of the trial court whose ruling will not be disturbed absent an improvident exercise of discretion (see, e.g., People v Schwartzman, 24 NY2d 241, 244, cert denied 396 US 846; People v Sorge, 301 NY 198). In a civil trial a witness may be cross-examined with respect to any immoral, vicious or criminal act which may affect his character and show him to be unworthy of belief (Richardson, Evidence § 498 [Prince 10th ed]; see, Gedrin v Long Is. Jewish-Hillside Med. Center, 119 AD2d 799; Guzzardi v Grotas, 98 AD2d 761). The view adopted by our dissenting colleagues is that because the plaintiff initially denied receiving moneys to which she was not entitled from the DSS, the line of questioning pursued by the defendant’s counsel ran contrary to the general rule that a cross-examiner cannot introduce extrinsic documentary evidence to contradict the answers of a witness on collateral matters solely for the purpose of impeaching credibility (see, People v Alvino, 71 NY2d 233, 247-248; Halloran v Virginia Chems., 41 NY2d 386, 390). However, the cross-examiner may, subject to the trial court’s discretion, continue to question a witness in an effort to induce the witness to change his answer (People v Sorge, supra, at 200-201; People v Batista, 113 AD2d 890, 891-892; Richardson, Evidence § 491 [Prince 10th ed]). In our opinion, the defendant’s counsel, in pursuing the line of questioning after the plaintiffs denial, did *828exactly what he was authorized to do under existing precedent and, thus, the trial court properly exercised its discretion in permitting such inquiry. The defendant’s counsel did not initially seek to admit into evidence the confession of judgment which formed the basis of this cross-examination. Rather, counsel had the confession of judgment marked for identification and showed it to the plaintiff. Thereafter, the plaintiff essentially admitted the facts related to the confession of judgment and sought to explain the circumstances surrounding its entry, after which it was admitted in evidence. The use of the documentary evidence was warranted to refresh the plaintiff’s recollection (Richardson, Evidence §§ 466, 467 [Prince 10th ed]; see, Brown v Western Union Tel. Co., 26 AD2d 316, 318). Indeed, its use achieved the result for which it was intended, namely, to prompt the plaintiff to change her testimony, and this line of inquiry did not transcend the bounds of propriety.

We further conclude that the trial court did not err in permitting defense counsel to question the infant plaintiff’s father, who had accompanied the infant to the hospital, regarding a statement made by him to the effect that the infant had been injured while jumping on her bed. The defendant’s counsel marked for identification a page of the hospital record in which a statement allegedly made by the infant’s father appears and confronted the infant’s father with the subject statement contained therein in an attempt to refresh his recollection. While we are of the opinion that counsel’s questions in this regard were proper, we believe that although the father was not a named party, the statement from the hospital record would have been admissible into evidence as equivalent to an admission (Richardson, Evidence § 502 [Prince 10th ed]; Barzaghi v Maislin Transp., 115 AD2d 679, 687; cf., Delgado v City of New York, 128 AD2d 484).

We have considered the plaintiff’s remaining contentions and find them to be without merit. Thompson, J. P., Kunzeman and Rubin, JJ., concur.