Present Sense Impression, Refreshing Recollection, and Inconsistent Statements in New York

Seaberg v North Shore Lincoln- Mercury, Inc., 2011 NY Slip Op 05688 (2d Dept, 2011).

An interesting evidentiary discussion, in a civil matter, with plenty of criminal law citations involving routinely encountered issues.

The Present Sense Impression Argument

The plaintiff sought to admit a tape of Pina’s 911 call under the present sense impression or excited utterance exceptions to the hearsay rule.

In opposition, the defendant quoted from Pina’s deposition testimony, in which he had stated, “somebody said to call. A lady fell in the parking lot.” Defense counsel argued that this testimony demonstrated that Pina had not seen the accident and, accordingly, any statement he may have made on the 911 tape was not within one of the proffered exceptions to the hearsay rule.

The Supreme Court agreed with defense counsel, and denied the plaintiff’s request to admit the tape under the present sense impression or excited utterance exceptions.

Why the Present Sense Impression Exception Failed

The court ultimately agreed that the present sense impression exception did not apply:

“Here, Pina did not witness the accident, but arrived at the scene after the fall. Thus, contrary to the plaintiff’s contention, any statements Pina may have made to the 911 operator about how the accident occurred were not present sense impressions of that issue, as he did not perceive the accident at all.”

The Refreshing Recollection Issue

Pina did recall waiting at the scene for approximately 15 minutes until an ambulance arrived. However, his trial testimony about the conditions at the scene conflicted with what he had previously told the 911 operator.

The Second Department held that the trial court should have allowed refreshing Pina’s recollection with the 911 tape:

“We agree with the plaintiff, however, that the Supreme Court should have allowed her to refresh Pina’s recollection with the 911 tape. At trial, Pina explained that he had no independent recollection of the incident. Such testimony was sufficient to allow the plaintiff to play the 911 tape outside the presence of the jury and allow Pina to refresh his recollection about what he had told the 911 operator.”

The Prior Inconsistent Statement Ruling

After Pina testified that he had seen no ice on the ground immediately after the accident, plaintiff’s counsel pointed out that in his prior deposition testimony, Pina admitted telling the 911 operator that he had seen “ice on the ground that caused [the plaintiff] to slip and fall.”

The defense asserted that plaintiff’s counsel was mischaracterizing Pina’s deposition testimony. Defense counsel then quoted from a portion in which Pina testified both that he did not recall seeing ice on the ground and that the content of the 911 tape did not refresh his recollection about the incident.

The Second Department’s Reversal

The jury returned a verdict in favor of the defendant on liability. The plaintiff appealed, and the Second Department reversed:

“The plaintiff also contends that the 911 tape should have been admitted as a prior inconsistent statement since, at trial, Pina testified that he did not observe any ice during the 15 minutes he stood near the plaintiff waiting for the ambulance to arrive, which was inconsistent with statements he made to the 911 operator. We agree with the plaintiff.”

The court found that the plaintiff laid the proper foundation for the introduction of the 911 tape as a prior inconsistent statement by questioning Pina about the contents so that he could explain any inconsistency (see Prince, Richardson on Evidence § 6-411; People v Wise, 46 NY2d 321, 326; People v Longo, 151 AD2d 786; cf. People v Wilkins, 221 AD2d 392).

The Supreme Court should have admitted the 911 tape into evidence as a prior inconsistent statement by Pina for the limited purpose of allowing the plaintiff to impeach his credibility.

Practical Implications for New York Litigators

Reversed on the law. This decision provides critical guidance for attorneys handling personal injury cases involving witness testimony disputes:

• Present sense impression requires the declarant to have personally perceived the event — arriving after the fact is insufficient
• Refreshing recollection is available when a witness claims no independent memory, and the refreshing material need not itself be admissible
• Prior inconsistent statements can be admitted for impeachment once proper foundation is laid, even when the witness denies the inconsistency
• The ruling is particularly relevant for car accident claims where 911 recordings and witness statements frequently play a central role in establishing liability

Attorneys handling no-fault insurance defense and personal injury litigation on Long Island should be prepared to use these evidentiary tools — and to defend against them.

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