and refused." Ultimately, all this discussion is rather meaningless, AD1 concludes, for plaintiff never requested a jury charge that the statement could only be considered for impeachment pur- poses, thereby failing to preserve the absence of the charge on appeal.
More? How about a trip north to AD3? Zupan v. Price Chopper Operating Co., NY Slip Op 07893 (3d Dep’t, 10/29/15) is a fairly typical slip and fall on water in a supermarket. Defendant’s cashier—and plaintiff’s cousin—made a written state- ment favorable to plaintiff after the fall, as well as an oral statement to plaintiff her- self to the same effect. The statements dealt with defendant’s notice of a leaking ice machine which produced the water upon which plaintiff took her spill.
Since the cashier had filled out a maintenance report one hour before the fall noting the leak, but could not recall the form or the leak, the trial court was correct in admitting the statement as a past recollection re-corded.
But what about the cashier’s oral statement to plaintiff, recalled by plaintiff at her deposition, i.e., the machine was broken and she had asked someone to clean up the leaking water? Isn’t that hearsay?
Sure, but this was an SJ motion, where hearsay, "sufficiently corroborated" by proof in admissible form, can be consi- dered, which it was here by defendant’s employees, who confirmed water in the same area. Under these questions, SJ can’t be granted, notwithstanding that "plaintiff is unable to establish the source of the water on the floor." Query: Does the cashier keep her job?