Opinion
July 20, 1970
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered June 9, 1969, in favor of the defendants upon a jury verdict. Judgment reversed as to defendant Connie's Car Wash, Inc., on the law, and, as between plaintiff and said defendant, action severed and new trial ordered, with costs to abide the event; and affirmed as to defendant City of New York, without costs. The questions of fact have not been considered on this appeal. In our opinion the cumulative prejudicial effect of several errors committed during the course of the trial mandate a new trial as to defendant Connie's Car Wash, Inc. The trial court charged that this defendant must have had notice of the condition in question before liability could attach as to it. This portion of the charge was error since affirmative negligence on the part of this defendant was claimed in that plaintiff charged that this defendant by artificial means permitted water from its car wash operation to accumulate on the public sidewalk where it allegedly froze and created an unsafe condition (cf. Cannon v. Pfleider, 19 A.D.2d 625; Epner v. Rhulen, 8 A.D.2d 646). In addition, the learned trial court improperly permitted this defendant to read as evidence-in-chief deposition testimony of its president although a proper foundation for the introduction of such testimony under CPLR 3117 had not been established. Moreover, the court erred in its response to one of plaintiff's requests to charge. Plaintiff had requested a charge that the jury might consider more favorably a portion of his testimony, which the president of defendant Connie's Car Wash could have contradicted if called, if the jury believed that this defendant was not diligent in securing the appearance of its president. The court responded, in the jury's presence, that plaintiff as well as the defendants could have subpoenaed this particular witness and, accordingly, the court would not charge as requested. In our view this statement was misleading since the witness in question was out-of-State and plaintiff could not compel his presence by subpoena. Under these circumstances, a new trial is warranted as to defendant Connie's Car Wash, Inc. Christ, P.J., Rabin, Martuscello, Kleinfeld and Benjamin, JJ., concur.