DEVORE v. NEW YORK CITY TRANSIT AUTHORITY (2002)

Judgment, Supreme Court, Bronx County (Anne Targum, J. and a jury), entered January 9, 2001, in favor of defendant Transit Authority dismissing the complaint in an action for personal injuries sustained when plaintiff fell off a subway platform and was hit by a train, unanimously affirmed, without costs.

Plaintiff argues that two written pretrial statements given by a nonparty eyewitness about a month after the accident, to the effect that plaintiff had been laying on the tracks for a full minute before the train struck him, are probative of the ample time the train operator had to stop the train before it hit plaintiff and are inconsistent with the witness's trial testimony.   While the statements were admitted for purposes of impeachment, they were excluded as evidence in chief of the facts stated therein.   We reject plaintiff's argument that the trial court thereby committed error.   As the trial court explained, unlike Letendre v. Hartford Acc. & Indem. Co., 21 N.Y.2d 518, 289 N.Y.S.2d 183, 236 N.E.2d 467, the reliability of the statements was called into question by many circumstances (see, Nucci v. Proper, 95 N.Y.2d 597, 721 N.Y.S.2d 593, 744 N.E.2d 128), including the witness's difficulty with the English language, the drafting of the statements in English not by defendant's but by plaintiff's investigator, who briefly read them to the witness in English, the absence of anything in the statements that was against the witness's pecuniary or penal interests, and the existence of other statements made by the witness at the scene of the accident to a police officer and one of defendant's agents that did not mention that plaintiff had been on the tracks for a minute before he was struck.   The trial court also properly precluded another witness from testifying about subsequent oral statements made by the first witness that allegedly verified the accuracy of the two written statements (see, CPLR 4514).   We have considered and rejected plaintiff's other arguments.