Opinion
0112555/2555.
Decided March 5, 2004.
Supreme Court of the State of New York County of New York: Part 24.
Plaintiffs' motion in limine is denied. Plaintiffs' objections to the evidence concerning tlic party wall that is riot the central focus of this litigation arcunpersuasivc, and, in any event, involve issues that should be resolved by the jury at trial. Although plaintiffs argue that there arc differences between the walls and that different Building Codes apply, such arguments go to the "weight of any such cvidcncc, but do not make it inadmissible, especially if defendant's expert can establish that tlic unaltered wall is appropriate for comparison to the party wall at issue here. Plaintiffs' claims that the danger ofa chimney collapse is too speculative docs not require preclusion of this evidence, but raises questions for tlic trier of fact. Moreover, plaintiffs' motion in J inline acknowledges that evidence on both the issues could be introduced if it relates to alleged damages caused directly to defendant's property; therefore, no basis exists to preclude all such testimony at this time.
The Court does riot. understand the exact nature of plaintiffs' motion relating to the counterclaim for malicious prosecution since plaintiff acknowledges that evidence of specific written complaints would be admissible. Plaintiffs do riot. clearly specify any evidcncc on this counterclaim that it wishes to preclude, and, of course, plaintiff always has tlic right to object lo any cvidcncc at trial. Finally, plaintiffs seek preclusion of any evidence of alleged alterations prior to the entry of judgment in a decision rendered by Justice Bacr. However, defendant persuasively argues that. some evidcncc as to tlic history of tlic property is relevant, and this Court's summary judgment decision mentioned some of these issues. Plaintiffs con-ectly note that Justice Tompkins, in an order dated Oct. 10, 2002, held that defendants cannot seek to enforce the previous judgment in this proceeding, and thus defendant cannot seek to enforce that earlier judgment here, I lowcvcr, Justice Tompkins did not rule that all evidence as to the condition of the premises prior to or at tlic time of that judgment would be inadmissible at the trial of this case.
Defendant's motion in liminc also is denied. The plaintiffs have indicated that Nora Dcvaney will. not be called as a witness on tlic plaintiffs' direct case and therefore this aspect of the preclusion motion is moot. The Court need riot address the motion to preclude her testimony on rebuttal since it is not clear whether she will actually be called in this trial. The Court denies this aspect of defendant's motion without prejudice to their right to renew it if plaintiff presents tier as a rebuttal witness.
The motion to preclude the testimony of Richard Adams is rejected. It is axiomatic that an expert witness cannot be compelled to submit lo a deposition absent a finding of special circumstances. See King Flee. of Graham Ave. v. American Nat I. Fire Jtis. Co., 232 A.D.2d 273 (1st Dept. 1996); 232 Broadway Corp. v. N.Y. Property Ins. Underwriting Assn., 171 A.D.2d 86 J (2d Dept, 1991). `This issue was the subject of a ruling by Justice Tompkins, who quashed a subpoena for a deposition of Mr. Adams. That ruling is law of the case and defendant offers no persuasive reason to reconsider it, In any event, defendant incorrectly argues that Mr. Adams is really a fact witness because he is going to tcsti fy about his observations and therefore no basis exists to conclude that he should have been deposed in this case. See generally Anderson v. Kamalian, 23 I A.D.2d 659 (2d Dept. 1996) (non-party witness who operated on plaintiff and who was trial expert not subject to deposition); Michalak v. Venticinque, 222 A.D.2d 1060 (4lh Dept. 1995) (treating physician not subject to deposition absent special circumstances).
"Finally, defendant objects to the introduction of any cvidcncc as to damages that were compensated by insurance. However, as plaintiff correctly notes, defendants may seek to reduce tlic amount of damages by the amount of such insurance payments, but plaintiffs arc not precluded by introducing evidence as to the total amount of damages at trial. See generally Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534 (2002); Low it v. Consolidated Edison, 234 A.D.2d 2 (1st Dept. 1996).
This constitutes the decision rind order of the Court.