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.