Second Department: Mother Telling Son Of Fall 3 Hours Later Clearly Not A Present Sense Impression

In Colombo v Sanfilippo 2009 NY Slip Op 02741 [61 AD3d 626] the Second Department refused to apply the present sense impression rule in a matter where the plaintiff's mother had fallen and had merely told her son three hours after the accident that she had fallen.

The plaintiff's affidavit submitted in opposition to the motion, in which he averred that, approximately three hours after the accident, his mother told him that she had fallen, did not identify the cause of the fall and, in any event, did not [*2]qualify as a present sense impression exception to the hearsay rule (see People v Vasquez, 88 NY2d 561, 575 [1996]; Matter of Talisveyber v Motor Veh. Acc. Indem. Corp., 16 AD3d 425 [2005]).

Practice Note: In New York State, the present sense impression must be expressed by the declarant during or near contemporaneously with the act being witnessed. Counsel should note the discussion of the additional requirement of reliability in the authorities cited.