Opinion
CA 03-00203
June 13, 2003.
Appeal from a judgment of Supreme Court, Herkimer County (Daley, J.), entered July 31, 2002, which awarded plaintiff a money judgment against defendant Hunt Bros. Contractors, Inc. upon a decision of the court.
MENTER, RUDIN TRIVELPIECE, P.C., SYRACUSE (JULIAN B. MODESTI OF COUNSEL), FOR DEFENDANT-APPELLANT.
ALI, PAPPAS COX, P.C., SYRACUSE (P. DOUGLAS DODD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and a new trial is granted.
Memorandum:
On appeal from a judgment entered in favor of plaintiff against Hunt Bros. Contractors, Inc. (defendant) following a bench trial, defendant contends that Supreme Court erred in admitting in evidence the petrographic analysis and accompanying test results. We agree. That document was hearsay, and plaintiff made no showing that the document was subject to an exception to the hearsay rule ( see Wagman v. Bradshaw, 292 A.D.2d 84, 87-88; Serra v. City of New York, 215 A.D.2d 643, 644). The error cannot be deemed harmless because plaintiff's expert relied upon that document in forming his opinion, and the court rendered its verdict based upon the information contained in that document and based upon the expert's opinion ( cf. CPLR 2002). We therefore reverse the judgment and grant a new trial.