Opinion
March 14, 1989
Appeal from the Supreme Court, Bronx County (Harold Tompkins, J.).
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 N.Y.2d 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 N.Y. 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.