Montes v. New York City Transit Authority

OPINION OF THE COURT

Kavanagh, J.

The infant plaintiff Miguel Montes, who was 11 years old at the time of the accident, was crossing the street when he was struck by a New York City Transit Authority bus. After trial, the jury found that defendants were not negligent.

The verdict is supported by a fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129, 133-135 [1985]; McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206-207 [2004]), including the testimony of defendants’ expert and defendant bus driver that the infant plaintiff darted into the crosswalk, against the light and in front of another bus that obstructed the driver’s view, creating an emergency situation that left the driver without enough time to stop the bus before striking plaintiff (see Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991]; Hassett v Budget Rent A Car of Fla., 209 AD2d 472 [1994]).

Contrary to the conclusions in the concurring opinion, the trial court did not err by refusing to admit into evidence all that was contained in a memorandum/report prepared by the Transit Authority during its internal investigation into the cause of the accident.

Much of what is in this report is factual and either was proven through the use of other evidence or involved issues which are not the subject of any meaningful dispute at trial. What was at issue is the admissibility of any of the conclusions set forth at the end of the document. Specifically, the report concludes as follows:

The eleven (11) year old male youth ran against a red traffic signal in front of the moving bus;
*123The B/O failed to use caution, and to anticipate, while approaching a very active intersection;
The B/O failed to properly observe, and to recognize potential hazard;
The B/O failed to drive defensively by sounding his horn and stopping in a timely manner.

When read in the abstract, these findings lead one to conclude that the Transit Authority has found that the operator of the bus was negligent in the operation of this vehicle, and was, at least in part, at fault for the cause of this accident. However, there was sworn testimony before the trial court which established that the last three of these conclusions were in reality an assessment by a representative of the Transit Authority as to how the driver’s operation of this vehicle measured up to the Transit Authority’s internal rules and standards, and did not represent an opinion by the Transit Authority that the driver at the time of the accident had failed to use reasonable care. The Transit Authority’s internal standards impose a code of conduct on its drivers that exceeds that of the common law by presuming that every accident is preventable, and that when one occurs, the driver must have to some extent been at fault (see e.g. Veal v New York City Tr. Auth., 148 AD2d 443, 445 [1989]).

The concurring opinion takes the view that since the report does not expressly refer to this enhanced standard of care, it cannot be used either to clarify the report’s conclusions or to determine their admissibility. Generally, business records are not self-proving, and determinations of their admissibility often require testimony of qualified witnesses familiar with how the documents are created (see National States Elec. Corp. v LFO Constr. Corp., 203 AD2d 49, 50 [1994] [testimony required to determine admissibility of contractor’s summary of damages]). Indeed, a trial court has broad discretion when ruling on the admission of evidence, and may “elicit and clarify testimony” in its attempt to control its courtroom (see Messinger v Mount Sinai Med. Ctr., 15 AD3d 189, 189 [2005], lv dismissed 5 NY3d 820 [2005]; Henriques v Kindercare Learning Ctr., 6 AD3d 220, 221 [2004]). This discretion allows the trial court to consider the circumstances by which a document was prepared in determining its relevance on the issue for which it has been proposed. Here, sworn testimony was given by an official with personal knowledge of the criteria used in preparing this docu*124ment—testimony which the trial court obviously found to be credible—which established that the report’s conclusions were based on the Transit Authority’s internal rules and practices, which in turn impose higher standards than the common law. As such, the opinions as rendered were not admissible to establish the driver’s negligence (see Karoon v New York City Tr. Auth., 286 AD2d 648 [2001]).

Moreover, while it is true as noted in the concurring opinion that the report is a business record, the business record statute “does not make admissible evidence which is otherwise inadmissible” (58 NY Jur 2d, Evidence and Witnesses § 465, at 257; see Bostic v State of New York, 232 AD2d 837, 839 [1996], lv denied 89 NY2d 807 [1997] [“(e)ven assuming that the exhibit was admissible under CPLR 4518, it is well settled that (t)he business records exception to the hearsay rule . . . does not overcome any other exclusionary rule which might properly be invoked . . . such as the requirement that the evidence sought to be introduced be relevant and material to the issue at hand” (citations and internal quotation marks omitted)]). A trial judge has the right, albeit the obligation, to redact from a report any parts thereof which, standing alone, would not be admissible. The fact that these conclusions are not relevant is not changed simply because they are set forth in a business record of the Transit Authority.

Equally important, there is no rational correlation between the conclusions as offered and the findings upon which they are based. For example, the report concludes “[t]he B/O failed to use caution, and to anticipate, while approaching a very active intersection.” There are no factual findings listed in the report which would rationally support such a conclusion or reasonably lead to it. The only factual finding that is remotely related to this conclusion that is contained in the report states as follows: “The B/O first observed the male youth when he was already in front of the bus.” That finding, if warranted, does not necessarily support the conclusion that the driver was negligent, nor is there any other explanation which explains the basis for this conclusion. Absent some rational connection supporting such inferences, the author of the report, if called to testify, would not have been allowed to give these opinions, assuming he was otherwise found competent to render them. The other arguments have been considered and found to be unavailing.

Accordingly, the judgment of Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered December 19, 2005, *125upon a jury verdict in defendants’ favor dismissing the complaint, should be affirmed, without costs.