Plaintiff Janyra Ebel appeals from a judgment of the Civil Court, New York County (Debra R. Samuels, J.), entered on or about August 18, 2005, after a jury trial on the issues of liability, in favor of defendants dismissing the action.

PER CURIAM

Judgment (Debra R. Samuels, J.), entered on or about August 18, 2005, reversed, and a new trial ordered, with $30 costs to abide the event.

Plaintiffs, passengers in a Ryder rental truck being operated by defendant Fuller, were injured when the rental truck struck a concrete support beam. This negligence action ensued, with plaintiff Kelly settling during the course of trial. According to Fuller's own deposition testimony, which was read to the jury at trial, Fuller "panicked" when another vehicle veered into her side of the road and made a U-turn. Fuller claimed that she swerved, thinking that the other vehicle was going to hit the truck, but then realized that she had misjudged the distance. Over objection, the court permitted inquiry into an unrelated accident in which plaintiff Kelly was involved five years earlier, where she had alleged that an unidentified vehicle struck her car, causing her vehicle to swerve into a guardrail. Defendant Ryder argued that since Kelly blamed a phantom driver in the prior accident, evidence thereof was admissible to show that plaintiffs were "making up a scenerio" in the instant case. Although the court noted that plaintiffs' theory of liability was "exactly the opposite," since they were not placing the blame on a phantom driver, but rather, claiming that Fuller was fully responsible, it permitted the inquiry and allowed defense counsel to argue in summation that the present accident was suspicious.

It is well established that evidence of a person's acts on any particular occasion is not admissible to show that such person acted in a similar fashion on a different, unrelated occasion (see Matter of Brandon, 55 NY2d 206, 210-11 [1982]). The mere fact that Kelly had an accident five years earlier, without more, was insufficient to support an inference of fraud. [*2]Notably, there was no claim or showing that the prior accident was staged or otherwise fraudulent. While evidence of a prior similar act is admissible where it tends to establish such factors as motive, intent or a common scheme or plan (Id. at 211), here there was not a sufficient degree of similarity or connection between the two accidents to permit the introduction of such evidence in support of Ryder's fraud defense. On this record, and there concededly being no other evidence to support Ryder's claim of fraud, the admission of evidence of Kelly's prior accident was sufficiently prejudicial to plaintiff Ebel to require a new trial.

Contrary to Ryder's contention, the trial court's refusal to charge res ipsa loquitur was not harmless error since it took away from the jury the choice of drawing the permissible inference of negligence from the circumstances
of the accident (see Pfaffenbach v White Plains Exp. Corp., 17 NY2d 132 [1966]).

This constitutes the decision and order of the court.
Decision Date: December 27, 2006