Opinion
December 22, 1969
In a negligence action to recover damages for personal injuries, defendant appeals from a judgment of the Supreme Court, Kings County, entered March 25, 1969 in favor of plaintiff, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The findings of fact below are affirmed. This was a close case on the question of defendant's negligence and plaintiff's freedom from contributory negligence. We are of the opinion that the introduction by plaintiff, over objection, of the report of defendant's examining doctor, which report was inadmissible hearsay, constituted prejudicial and reversible error. The case relied upon by plaintiff in this court ( Pickering v. Freedman, 32 A.D.2d 649) is distinguishable because there the question of the negligence of the plaintiff passenger was not as crucial as that of the plaintiff driver at bar, the injuries received by the plaintiff in that case were readily observable by the jury, and that plaintiff provided testimony by her treating physician, a fact absent from the instant case. Rabin, Acting P.J., Hopkins, Benjamin, Munder and Martuscello, JJ., concur.