Opinion
March 18, 1971
Order and judgment (one paper), Supreme Court, New York County, entered April 24, 1969, after trial before the court without a jury based upon a finding that respondent was involved in an accident with a hit-and-run motorist, and denying an application to stay arbitration, unanimously reversed, on the law and the facts, without costs and without disbursements, and the motion to stay arbitration permanently is granted. In our view, the finding that respondent was the victim of a hit-and-run accident was contrary to the weight of the credible evidence. The trial court should have given credence to the testimony of the State Trooper, who had interviewed the respondent in the hospital soon after the occurrence, wherein the State Trooper testified that respondent had reported that the accident resulted from loss of control of the motorcycle while respondent was attempting to adjust some mechanical failure. During that interview, respondent made no claim that he was struck by another vehicle or that any other car was involved in the accident. The testimony by the respondent that he was unconscious for days and that he never spoke to the State Trooper does not carry conviction. The trial court gave no reason why the evidence of the investigation by the State Trooper was rejected and that by respondent was believed. Moreover, the trial court erred in not admitting into evidence the hospital record which was offered to discredit respondent's claim that he could not have made the damaging admissions to the State Trooper because he was unconscious for days after the accident. Clearly, such record would have shown respondent's medical condition and would have been relevant on the issue of respondent's claim that he was unconscious. However, there is no necessity for remanding for a new trial, since in our view, even in the absence of a hospital record to refute respondent's claim of having been unconscious, the evidence failed satisfactorily to establish a hit-and-run accident. On an appeal from a judgment entered on the decision of the trial court in a nonjury case the Appellate Division may deal with the evidence as the trial court should have done, and render judgment without granting a new trial. (11 Carmody-Wait 2d, New York Practice, § 72:169.) We therefore deal with the evidence as the trial court should have done and stay arbitration. (See CPLR 5522; 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5522.04; Society of N.Y. Hosp. v. Burstein, 22 A.D.2d 768.)
Concur — Stevens, P.J., Capozzoli, McGivern, Nunez and McNally, JJ.