Opinion
Argued March 9, 2000.
April 24, 2000.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Vaughan, J.), entered February 2, 1999, which, upon a jury verdict in favor of the defendants, and the denial of his motion pursuant to CPLR 4404 to set aside the verdict and for judgment in his favor as a matter of law or for a new trial, is in favor of the defendant and against him, dismissing the complaint.
Talisman, Rudin DeLorenz, Brooklyn, N.Y. (Joshua D. Pollack of counsel), for appellant.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for respondents.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, THOMAS R. SULLIVAN, MYRIAM J. ALTMAN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
Contrary to the plaintiff's contention, the trial court did not err in reversing an evidentiary ruling mid-trial. The document which was the subject of the ruling, offered as a business record, contained conclusions as to the cause of the accident which were not made by an expert, and which did not stem from post-incident expert analysis of observable physical evidence (see, Valloney v. Viau, 249 A.D.2d 536 ; Franco v. Muro, 224 A.D.2d 579 ; Hatton v. Gassler, 219 A.D.2d 697 ). To permit testimony regarding an ultimate issue in the case would usurp the role of the jury (see, Nevins v. Great Atl. Pac. Tea Co., 164 A.D.2d 807 ).
The trial court properly charged the jury with respect to the emergency doctrine. A party requesting such an instruction is entitled to have the jury so charged if, as here, "under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's * * * making" (Barath v. Marron, 255 A.D.2d 280, 281 ; Rivera v. New York City Transit Auth., 77 N.Y.2d 322, 327 ; see also, Kuci v. Manhattan Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 924 ).
The plaintiff's remaining contentions are without merit.