Opinion
January 12, 1970
In a negligence action to recover damages for personal injuries, loss of services, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered on January 9, 1969, against them and in favor of defendant New York City Transit Authority upon a jury verdict after a trial solely on the issues of liability. Judgment reversed, on the law, and new trial granted as between appellants and respondent, limited to the issues of liability, with costs to abide the event. The findings of fact below are affirmed. In our opinion, no proper foundation for the admission into evidence of the written report of respondent's bus driver, as a prior consistent statement, was present. As a witness at the trial he was charged only with mistake or confusion, not "recent fabrication" ( People v. Singer, 300 N.Y. 120, 124). In any event, since it has been conceded by respondent that the report was prepared for it by its bus driver, its allegedly negligent employee, as "attorney's work products and material prepared for litigation" (affidavit supporting respondent's motion for a protective order; see CPLR 3101, subds. [c], [d]), the report was not made at a time when there was no motive to falsify ( People v. Katz, 209 N.Y. 311, 336 et seq.). Brennan, Acting P.J., Hopkins, Benjamin, Martuscello and Kleinfeld, JJ., concur.