Opinion
1956TT443.
As Corrected Decided February 25, 2004.
Harris Beach LLP, Paul Yesawich Esq., for Chase Manhattan Bank, petitioner-trustee.
Williams Williams, Mitchell T. Williams, Esq. for Margaret S. Hunter, University of Rochester, Rochester Institute of Technology and American Red Cross, objectants-beneficiaries.
New York State Attorney General, Audrey Cooper, Esq., Statutory Representative of Ultimate Charitable Beneficiaries.
BACKGROUND
Objectants bring this motion orally at the close of trial, requesting a missing witness charge for Thomas Brown. Mr. Brown was the portfolio manager of the Dumont trust from 1973 until 1976, a critical time period in this litigation. Objectants contend that Mr. Brown was a crucial witness, and that the Petitioner ought to have called him for its defense. Petitioner did not call Mr. Brown, and Objectants assert that because of this they are entitled to a missing witness inference against him. In opposition, Petitioner argues against this assertion, stating that Objectants' motion was untimely, and that Objectants have not met their burden of showing that Mr. Brown was both available and under control of the Petitioner.
OPINION
When a party fails to call a witness who would normally be expected to give unique and supportive testimony, the omission can be more telling that the expected testimony itself. A missing witness inference allows an opposing party to have the evidence weighed in his or her favor on the topic which the missing witness was expected to testify. Because the inference is a strong one, a "mere failure to produce witness at trial is insufficient to justify the charge". A party who seeks a missing witness charge must make a timely, prima facie showing of several different elements: that there is an uncalled witness who is knowledgeable about a material issue, who would naturally be expected to be called for noncumulative testimony favorable to the party against whom the charge is sought, and that the witness was available to and under the control of the party who failed to call him or her.
See, Seligson, Morris Neuburger v. Fairbanks Whitney Corp., 22 A.D.2d 625, 630 (1st Dep't., 1965).
Id.
4-11 Bender's New York Evidence § 11.08 [3].
Buttice v. Dyer, 767 N.Y.S.2d 653, 653 (2nd Dep't., 2003).
There is no debate here over Thomas Brown's unique knowledge of a material issue in this case. Objectants' position in this litigation is that the Petitioner-bank ought to have vastly overhauled in the investment strategy of the Dumont trust ( ie., sold 95% of the Kodak stock) on or before January 31, 1973. Since Mr. Brown was the portfolio manager of the trust during this time, it was his responsibility to make the investment decisions for the trust, such decisions will be critical to the determination of the prudence of the Petitioner's management of the trust during the accounting period. For purposes of this motion, the argument between the parties lies on three points: (1) the timeliness of the application; (2) the question of the availability of the witness, and (3) the question of whether the witness was under the Petitioner's "control".
Timeliness Petitioner cites caselaw where missing witness charges were held as properly denied when the party seeking the charge waited until the close of proof to submit the application to the court. However, the standard for timeliness is not so completely dependent upon such a cutoff, quantifiable as it may be, as to make the cessation of submission of proof exclusively determinative of the timeliness of a missing witness application. The standard is a bit more flexible. As the Court of Appeals sets forth in Gonzalez, an application should be brought "as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their trial strategy to avoid `substantial possibilities of surprise'". The Gonzalez Court states that the application should be made as soon as the party seeking the charge gains the knowledge that an expected witness for the opposing party will in fact not be testifying, even if this comes after the litigation has commenced.
People v. McKinney, 302 A.D.2d 993 (4th Dep't., 2003); Thomas v. Triborough Bridge and Tunnel Authority, 270 A.D.2d 336 (2nd Dep't., 2000).
People v. Gonzalez, 68 N.Y.2d 424, 428 (1986) (citation omitted).
See, id. See also, Adkins v. Queens Van-Plan, where the trial court's refusal to grant a missing witness charge the day before the testimony closed was held to be an "improvident exercise of discretion" given that the application was timely made. 293 A.D.2d 503 (2nd Dep't., 2002).
Objectants presented their proof first in this trial, and hence had to wait until Petitioner rested to learn for certain what witnesses would or would not be called by Petitioner. Even though Objectants brought this motion at the end of the testimony, they requested a missing witness charge as soon as they possibly could have done so, completely within the standard of timeliness articulated in Gonzalez. If this Court were to rule that Objectants were untimely in their application, Petitioner would have been effectively authorized to cloak its witness list in a shroud of secrecy until it was too late for Objectants, surprised by the lack of testimony from Brown, to tactically address it. This is not what prior caselaw has envisioned; Gonzalez itself requires timeliness in an application to indeed reduce the surprise factor in litigation. Furthermore, as this litigation was a non-jury trial, there is little harm in allowing a post-proof application. There is no group of citizen jurors with lives on hold awaiting resolution to this motion, nor would it have been difficult for the Court to re-open proofs in response to this motion if that is what the parties would have preferred.
It bears noting that Margaret Hunter, one of the Objectants herein, was not called by her attorney to testify at trial. Petitioner was aware beforehand that this would be the case and was able to raise the issue of her absence before proofs even began. Petitioner's prior knowledge of Ms. Hunter's impending absence allowed it to prepare an alternate way to secure needed testimony by reading portions of Ms. Hunter's deposition into the record at the time of trial.
Availability Control
Petitioner suggests that Objectants bear the burden of proving that the witness is both available and under the control of the Petitioner. This is not entirely correct. The party who asserts the charge "bears the initial burden of promptly notifying the trial court" of the missing witness and must make a prima facie showing of each of the elements required for such a charge, after which the burden shifts to the opposing party to prove that the missing witness is (1)unavailable, or (2) not under his or her control.
Buttice, supra at 653.
As are neatly laid out in the Buttice case, supra.
"The burden is on the party opposing the inference to establish that the witness is not available or under his or her control." 4-11 Bender's New York Evidence § 11.08 [3] (emphasis added). "Once the party seeking the charge has established prima facie that an uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably to the opposing party, it becomes incumbent upon the opposing party, in order to defeat the request to charge, to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate". People v. Gonzalez, 68 N.Y.2d 424, 428 (1986). People v. Erts, 73 N.Y.2d 872, 874 (1988).
Petitioner has raised the issue of Mr. Brown's availability, maintaining that Mr. Brown was not available as a matter of law because he resides out of state. It is true that nonresidents are not subject to a subpoena and therefore are often unavailable by their location, if not their non-residency alone. However, authority on the element of the "availability" of a witness often addresses the party's efforts to locate the witness or obtain his/her testimony. Furthermore, the testimony introduced at trial by Petitioner as to Mr. Brown's whereabouts was very vague. It was not until Petitioner raised a defense to this motion and submitted an affidavit by John Teegardin, its primary witness (which stated matter-of-factly that Mr. Brown was residing in Massachusetts) that the Court was even aware for certain that Mr. Brown indeed did live out of state. As Objectants note, the clarity of Teegardin's statement suggests that not only is Petitioner aware of Mr. Brown's specific whereabouts, but was likely also aware of this both before and during the trial.
Letter from Petitioner's counsel to the Surrogate, dated February 9, 2004, citing Cohen v. Lukacs, 272 A.D.2d 501 (2nd Dep't., 2000). Cf., Zeeck v. Melina Taxi Co., 177 A.D.2d 692, 694 (2nd Dep't., 1991) where the Appellate court states that "proof that a witness is beyond the jurisdiction of the court is ordinarily sufficient to bar the inference" (emphasis added) but decided the case primarily on the element of control.
"Surely, it would be unfair as well as illogical to allow a jury to draw an adverse inference from the failure of the party to call a witness when the party is unable to do so. So that if the party opposing the charge can demonstrate for example, that the witness' whereabouts are unknown and that diligent efforts to locate him have been unsuccessful . . . the charge should not be given. . . ." (citations omitted, emphasis added). Gonzalez, supra, at 428. See, 4-11 Bender's New York Evidence § 11.08 [3]; People v. Martins, 244 A.D.2d 276 (1st Dep't., 1997); People v. Matthews, 185 A.D.2d 900 (2nd Dep't., 1992).
"I believe he [Brown] is in New England someplace", Transcript from direct examination of R.A. Lewis, page 490.
Affidavit of John Teegardin, February 4, 2004, pg 2.
Petitioner's blanket reliance on Mr. Brown's nonresident status sounds of convenience. Non-residency can certainly bar a witness's availability for trial, both as a logistical and legal matter, but it alone is not completely determinative, it is at most witness-dependent. After all, Petitioner was able to bring Mr. R.A. Lewis from Florida to testify; Mr. Lewis who is also retired from the bank and also living out of state-in fact living much further away than is Mr. Brown. Thomas Brown's non-residency is a factor in the availability determination in so much as it pertains to Petitioner's level of diligence in attempting to bring Mr. Brown for trial. Petitioner bears the burden of satisfying this Court that Mr. Brown was unavailable for testimony. Were this Objectants' burden, Brown's non-residency alone would likely suffice. As it is, however, Petitioner does not convince the Court that Brown was unavailable for trial because it has not made any showing that Brown could not be contacted or was unwilling to testify. Petitioner cannot rely on self-tied hands to defend this element of this motion.
Although Petitioner has not been successful on either of the above arguments, the Petitioner has raised a sufficient defense to this motion in arguing that Mr. Brown was not under the "control" of the bank. Control is the most nebulous of elements in a missing witness application. It is a "relative concept", relating to the "relationship between the witness and the parties." When a witness, because of his or her relationship to a party in the litigation, can be expected to give testimony which would be favorable to one side and not the other, that witness can be said to be under the control of the party whom his or her testimony would favor. Examples of such relationships are husband/wife (legal or common law), employer/employee and patient/physician. Where parties have had a strong relationship in the past that has been extinguished, the element of "control" disappears. Examples are: ex-boyfriend/ex-girlfriend, and ex-employer/ex-employee. Mr. Brown is a former employee of the Petitioner. While the nexus between Petitioner and Mr. Brown is stronger than that among two parties in the average population, it is not one which will satisfy the control element of a missing witness inference. There is no reason to believe that Petitioner's relationship with Mr. Brown would particularly influence him to testify solely in the bank's favor.
Gonzalez, supra, at 428.
See, id.
See, Adkins v. Queens Van-Plan, Inc. 293 A.D.2d 503 (2nd Dep't, 2002).
Buttice v. Dyer, 767 N.Y.S.2d 653 (2nd Dep't, 2003).
Coliseum Towers Asscs v. County of Nassau, 769 N.Y.S.2d 293 (2nd Dep't., 2003); Zeeck v. Melina Taxi Co., 177 A.D.2d 692 (2nd Dep't., 1991).
The "availability" element and the "control" element of a missing witness application need not both be defended. A successful defense on one prong yields a defense on the application itself. Therefore, because Petitioner has met its burden to show that Mr. Brown was not a person under it's control, the Objectants' application must be denied in its entirety.
Denial of a missing witness application however does not gag the Objectants on the topic: "It is common, if not universal, practice for counsel for each side to argue to the jury upon the failure of the other side to produce available witnesses". It is appropriate for counsel to be allowed to comment on the other side's missing witness, even if the strong inference itself is denied, and allowable still for such comments to be appropriately weighed as needed. Objectants are therefore free in their summation papers to address both the absence of Thomas Brown's from the trial as well as the corresponding lack of records for the period of Brown's employment by Petitioner.
Seligson, supra, at 629.
In People v. Ruine, 258 A.D.2d 278 at 278 (1st Dep't., 1999), the Appellate Division held that it was "[appropriate for the trial court to instruct] the jury that it could consider the absence of testimony . . . and give it such weight as the jury chose". Presumably the discretion given to the trier of fact to appropriately weigh such evidence even without a missing witness charge is no less broad in a bench trial.
Such records, if they are in existence, would presumably have come into evidence if Mr. Brown would have testified.
So ordered.