Opinion
836
April 23, 2002.
Judgment, Supreme Court, Bronx County (Michael DeMarco, J., and a jury), entered October 12, 2000, in an action for personal injuries caused by a fall on defendant's premises, awarding the infant plaintiff,inter alia, $300,000 for future pain and suffering over 41 years and $40,000 for future medical expenses, unanimously affirmed, without costs.
THOMAS TORTO, for plaintiff-respondent.
ELLEN B. FISHMAN, for defendant-appellant.
Before: Nardelli, J.P., Tom, Buckley, Rosenberger, Ellerin, JJ.
The statements in the hospital record attributed to the infant plaintiff's mother, also a plaintiff herein, that the infant was struck by a thrown rock were not admissible either as admissions or under the business records exception to the hearsay rule (CPLR 4518). The statements were not admissions since the mother did not witness the occurrence but based the statements on what she heard from persons other than the infant (see, Quispe v. Lemle Wolff, 266 A.D.2d 95; Geraty v. National Ice Co., 16 A.D. 174, 181-182, affd 160 N.Y. 658). Nor do the statements qualify as business records since defendant failed to adduce evidence showing that the statements were germane to treatment or diagnosis (see generally, Williams v. Alexander, 309 N.Y. 283, 287; cf.,Haulotte v. Prudential Ins. Co., 266 A.D.2d 38, 39). The statements in police records to the same effect attributed to the infant's father, not a party herein, were also properly excluded, since the father had no personal knowledge as to how the accident happened and was under no duty to make the statements (see, Johnson v. Lutz, 253 N.Y. 124; People v. Cruz, 283 A.D.2d 295, 728 N.Y.S.2d 1, lv denied 97 N.Y.2d 640). The awards for future medical expenses and future pain and suffering for injuries involving the loss of eight permanent teeth are supported by a fair interpretation of the expert testimony and do not deviate materially from what is reasonable compensation under the circumstances (CPLR 5501[c]). We have considered defendant's other arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.