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Harvin v. New York City Transit Authority

Appellate Division of the Supreme Court of New York, Second Department
Nov 22, 1993
198 A.D.2d 401 (N.Y. App. Div. 1993)

Opinion

November 22, 1993

Appeal from the Supreme Court, Kings County (Williams, J.).


Ordered that the judgment is affirmed, with costs.

We find that the trial court properly precluded the plaintiff's decedent, who was alive at the time of the trial, from bolstering her trial testimony by use of her prior consistent statements. It is well settled that an impeached witness cannot be rehabilitated by a prior consistent statement unless the cross-examiner has created the inference of, or directly characterized, the witness's testimony as a recent fabrication (see, People v McDaniel, 81 N.Y.2d 10; People v McClean, 69 N.Y.2d 426; People v Davis, 44 N.Y.2d 269). Here, the defense counsel attempted to challenge the reliability of the plaintiff's decedent's account of how the incident in question occurred, but did not attempt to show that her testimony was a recent fabrication (see, Smith v Emkay Fifth Ave., 172 A.D.2d 656).

We also find that the court did not improvidently exercise its discretion in denying the plaintiff's decedent's request to present rebuttal evidence. The evidence the plaintiff's decedent sought to present could have been presented during her direct case and would have merely served to bolster her case (see, Kupfer v Dalton, 169 A.D.2d 819; Kapinos v Alvarado, 143 A.D.2d 332).

We have reviewed the plaintiff's remaining contentions and find them to be without merit. Bracken, J.P., Balletta, Miller and Pizzuto, JJ., concur.


Summaries of

Harvin v. New York City Transit Authority

Appellate Division of the Supreme Court of New York, Second Department
Nov 22, 1993
198 A.D.2d 401 (N.Y. App. Div. 1993)
Case details for

Harvin v. New York City Transit Authority

Case Details

Full title:HARRY HARVIN, as Administrator of the Estate of PATRICIA HARVIN, Deceased…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 22, 1993

Citations

198 A.D.2d 401 (N.Y. App. Div. 1993)
603 N.Y.S.2d 893

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