The opinion
McNally, J. (dissenting).
The written accident report filed by Zaccor was a report made by Zaccor in the regular course of his employment as the safety co-ordinator of the Times and it was also the report kept by the Times in the regular course of business and the same was admissible in evidence under CPLB 4518 (subd. [a]). (Kelly v. Wasserman, 5 N Y 2d 425; Bromberg v. City of New York, 25 A D 2d 885; Chemical Leaman Tank Lines v. Stevens, 21 A D 2d 556; Bishin v. New York Cent. R. R. Co., 20 A D 2d 921; Zaulich v. Tompkins Sq. Co., 10 A D 2d 492, 496.) If it be assumed the record was not kept in the .regular course of business, it is a case where the rule respecting opening of the door to the full development on redirect examination of a matter inquired into on cross-examination clearly should be applied.
In People v. Regina (19 N Y 2d 65) a detective called by the People testified on direct examination that on the night that the crime was committed he saw the defendant riding as a passenger in an automobile, after the defendant’s wife had previously testified that her husband was home that night. On cross-examination, .the defendant’s counsel asked the witness if he had made any notes of the occurrence “ that night ”, and he replied in the negative. On redirect examination the People were allowed to establish, over the objection of the defendant, that the witness had made notes of the occurrence three days later. In upholding the ruling of the Trial Justice allowing this evidence to be introduced on redirect examination, .the Court of Appeals stated (p. 78): “ the prosecution’s question on redirect examination was properly within the scope of matters gone into on cross-examination and did no more than to explain, clarify and fully elicit a question only partially examined by the defense. It was entirely proper *232 (People v. Buchanan, 145 N. Y. 1, 23, 24 ; Richardson, Evidence [9th ed.], '§ 531).”
It is no answer to the offer of proof made on this ground by Times to state, as the court did, 6 ‘ that the initial questions as to conversations with Mr. Griffin were put ’ ’ by counsel for Times since, under recognized rules of cross-examination, unless he called him as his own witness, counsel for the plaintiff would not even have been able to question Zaccor about Griffin’s report had the matter not been mentioned on his direct examination. The point at issue is not whether Times first raised the matter but whether the plaintiff’s attorney in his cross-examination of Zaccor far exceeded the limits of proper cross-examination in bringing out further matters, which were not mentioned on direct examination. These matters created a wholly false picture in the minds of the jury concerning the content of the oral report of the accident which Zaccor had received from Griffin. The Times clearly should have been afforded an opportunity to present the whole picture to the jury. As the evidence stood, the jury had every right to believe that everything that Griffin told Zaccor concerning the accident fully corroborated the story of the occurrence told by Miss Feblot at the trial. Under these circumstances, it is my opinion that the exclusion from evidence of defendant’s Exhibit B for identification constituted prejudicial error.
Further, there is no credible testimony to connect plaintiff’s alleged condition with the accident and in any event the verdict is grossly excessive. Plaintiff was 63 years of age at the time the accident occurred. She had no hospitalization. Dr. Robert L. Preston, the only medical witness called at the trial, saw her only twice, to wit, on March 10, 1965, nearly a year after the accident, and again in August, 1969. Although he claimed on direct examination that the middle third of the deltoid muscle in Miss Feblot’s right shoulder was “ruptured away from the bony attachment at the shoulder ”, on cross-examination he admitted, ‘“Well, it may be, it may be ruptured or it may not be ruptured ’ ’. He was then asked, “ so * * * you didn’t know, is that right ”, and he replied in the affirmative. Although he had previously testified that Miss Feblot had a limitation of motion in her right 'shoulder when he first saw her on March 10, 1965, on cross-examination he admitted that he was also in “ error” about this and that he did not find any limitation of motion in the right shoulder “until the next examination”, which was in August, 1969, over five years after the date of the accident herein. The *233 plaintiff has admitted suffering from bursitis of the right shoulder prior to the accident. Medical testimony in the case indicates atrophy of the right shoulder is incidental to disuse and could be brought about by bursitis. There is no showing of proximate cause and the most that can be said is the testimony is highly speculative.
There was no proof of loss of earnings and no proof of medical expenses. In view of the prejudicial error, I feel that the judgment appealed from should be reversed and a new trial granted.
Stevens, P. J., and MoGtvern, J., concur with Capozzoli, J.; McNally, J., dissents in opinion, in which Stetjer, J., concurs.
Judgment, Supreme Court, New York County, entered on October 27, 1971, affirmed. Plaintiff-respondent shall recover of defendant-appellant $50 costs and disbursements of this appeal.