Blake v. City of New York

—Judg [483] ment, Supreme Court; Bronx County (Alan P. Saks, J.), entered March 31, 1988, awarding plaintiff damages in the amount of $2,400,000, is affirmed, without costs. The dissent would reverse the judgment and direct a new trial because of the admission of certain hearsay testimony. If it was indeed error to admit this testimony, defendant does not make a separate point of it in its brief, and to the extent the testimony is discussed, it is only in the context of the use made of it by plaintiff’s attorney in his summation. The argument is that because the attorney vouched for the credibility of the witness, the jury may have taken her testimony to be "proof positive” of a promise of police protection rather than merely evidence of plaintiff’s state of mind, i.e., belief that such a promise had been made, the limited purpose for which it was admitted. (We would note that plaintiff’s reliance on such a promise was an essential element of her cause of action [Cuffy v City of New York, 69 NY2d 255], and thus this testimony would seem to have been admissible under the state of mind exception to the hearsay rule.) However, because defendant did not object to these remarks at the time they were made, if they were indeed beyond fair comment, the little prejudice caused thereby may not be reviewed on appeal (CPLR 4017). Concur—Murphy, P. J., Kupferman, Kassal and Wallach, JJ.