Rosenberg v. Equitable Life Assurance Society of United States

Judgment of the Supreme Court, Bronx County (Harold Tompkins, J.), entered January 27, 1988, after trial by jury, which found in favor of plaintiff against defendant The Equitable Life Assurance Society of the United States in the sum of $400,000 for wrongful death plus $30,000 for pain and suffering, and dismissed the complaint as against defendant Roger Malhotra, is unanimously reversed, on the law, and the case remanded for a new trial, without costs.

A friend and former neighbor of plaintiff, Ethel Belton, was permitted to testify, over defendant’s objection, that the decedent told her he had been given a stress test which involved climbing stairs, bending and stooping, and complained of tiredness and pain in the days following that test. These alleged statements, possibly made weeks after the administration of the stress test, were hearsay and should have been excluded by the trial court (see, Rawlings v Prudential Ins. Co., 256 App Div 284, 287). The statements were too remote in time to be considered as spontaneous declarations or res gestae declarations (see, People v Caviness, 38 NY2d 227, 230). The case relied upon by the trial court to support admission of this testimony, Tromblee v North Am. Acc. Ins. Co. (173 App Div 174, affd 226 NY 615), is inapposite. There, the evidence permitted was complaints of pain made by the decedent within two days of an accident. Here, the challenged testimony related not only to the complaints of pain, but also consisted of a narrative regarding the administration of the stress test. Further, the statements herein were much more remote in time than those in Tromblee.

The admission of the neighbor’s hearsay testimony, which was used to establish that a stress test was administered to the decedent, furnished a linchpin to plaintiff’s case and was, most assuredly, prejudicial. Concur — Sullivan, J. P., Asch, Kassal and Ellerin, JJ.