QUINN v. 1649 RESTAURANT CORP (2005)

Supreme Court, Appellate Division, First Department, New York.

Tracy QUINN, etc., Plaintiff-Appellant, v. 1649 RESTAURANT CORP., doing business as The Deadline, Defendant-Respondent.

Decided: May 12, 2005

ANDRIAS, J.P., SULLIVAN, GONZALEZ, SWEENY, CATTERSON, JJ.

Biaggi & Biaggi, New York (Mario Biaggi, Jr. of counsel), for appellant. Yoeli & Gottlieb LLP, New York (Michael Yoeli of counsel), for respondent.

Judgment, Supreme Court, New York County (Martin Shulman, J.), entered June 10, 2004, upon jury verdict, in defendant's favor, unanimously affirmed, without costs.

Plaintiff's testimony regarding what defendant's owner told her defendant's manager had told him about her husband's condition the night before his death was properly excluded. Such testimony would have been double hearsay not subject to any exception (see People v. Boatwright, 297 A.D.2d 603, 748 N.Y.S.2d 541 [2002], lv. denied 99 N.Y.2d 533, 752 N.Y.S.2d 593, 782 N.E.2d 571 [2002]; see also People v. Reynoso, 73 N.Y.2d 816, 537 N.Y.S.2d 113, 534 N.E.2d 30 [1988] ).

The court's charge regarding the standard of care when a duty is voluntarily assumed mirrored New York's Pattern Jury Instructions and was proper as given. There is no authority to suggest that the more specific charge requested by plaintiff was necessary.

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