Sirico v. Cotto

67 Misc.2d 636, 324 N.Y.S.2d 483 (1971)

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Nature of the Case

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Facts

Sirico (P) called Dr. Wolfson as a witness regarding her damages. Dr. Wolfson had taken a number of X-Rays of P's spine. Based on these X-Rays, he wrote a report which he sent, along with the X-Ray plates, to P's treating physician. On the stand, Dr. Wolfson had his report to refresh his recollection. When asked to describe his findings, defense counsel objected. At this point, the jury was excused, and in order to make a record, Dr. Wolfson was allowed to testify to what the X-Rays showed. Neither Dr. Wolfson nor P's counsel had the X-Ray plates, and P's treating physician did not testify. The court sustained D's objection and dismissed Dr. Wolfson.