Opinion
309/2000.
Decided November 15, 2007.
Bonita E. Zelman for plaintiff; Office of Corportation Counsel, Cathleen Cotter for defendants.
Plaintiff moved for an order precluding Defendants from mentioning during voir dire that defendant Smith was responding to a police 10-13 run at the time of the accident. Plaintiff also seeks an Order precluding defendant from offering into evidence or using the defense that defendant Smith was responding as an "emergency vehicle" to a 10-13 on the ground that no evidence of a 10-13 exists in the sprint report and that there is no foundation for admission into evidence that the Fire Department record is authentic. And, that said document is further inadmissible as it was not disclosed until the eve of trial. Defendant argues that plaintiff is precluded from raising these issues as the Note of Issue has been filed and in essence plaintiff has waived these arguments. Escourse v. City of New York , 27 AD3d 319 .
22 NYCRR § 202.21(d) states in relevant part: "Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings."
It appears that the Notice of Trial was filed on August 19, 2004. It should be noted that neither party attached the notice of trial to the moving papers as such, this Court is unable to determine what instructions were given in reference to outstanding discovery although some indication is given in the May 13, 2003 order issued by Judge Douglas which indicates that "defendant has complied with all legitimate demands." However, the emergence of the Sprint report eleven years after the accident, eight years after the first request via plaintiff's Notice of Discovery and Inspection ("D I"), four years after plaintiff's second D I and defendant's response to such, is in fact an unusual and unanticipated circumstance. The delay in brining [ sic] such a motion was not due to any fault of the plaintiff. Rather, it was not [ sic] due to plaintiff's reliance on defendants representations, made seven years after the accident, that in fact no such 911tape or sprint report existed and if it did it would be turned over to the plaintiff. As such, this Court, in its discretion allows this motion.
The accident occurred on May 23, 1995. On October 30, 1998 plaintiff served a Notice of D I which demanded the "911 tape and sprint report regarding the emergency that the defendant police officer Steven Smith was allegedly responding to at the time and place of the accident."
On March 18, 2002 plaintiff served a Notice for Discovery and Inspection demanding "NY Police Dept. Sprint Report containing call for 10-13 in the vicinity of E. 180th St. And Creston Ave or Morrison or Walton on May 23, 1995, which 10-13 call defendant Steven Smith testified at EBT of September 8, 1999, he was responding to at the time of the accident" and "[the] 911 tape showing above 10-13 call and responses made."
On April 17, 2002, defendants responded to Plaintiff's D I by representing "the defendant's are not in possession of such tapes. The sprint records have been requested from the appropr1ate agency and will be forwarded under separate cover, upon receipt, if such exists."
On December 15, 2006, plaintiff on her own accord, subpoenaed the sprint report and 911 audiotape from the Communications Division Tape and Records Unit at One Police Plaza. In respond plaintiff received a copy of the sprint report for May 23, 1995 which does not list any 10-13 call at the time in question.
This case was set down for trial on November 8, 2007. At jury selection, defendants turned over to plaintiff an FDNY CAD report which records a 10-13 call on May 23, 1995 at the applicable time. This document is dated April 24, 2002 and is signed by an illegible signature attesting that this is in fact a "true and accurate" copy of the document.
Preclusion of testimony or evidence is a drastic remedy only warranted where, in light of a prior court order, there is evidence of willful, deliberate and contumacious conduct in the failure to disclose. Paz v. The City of New York , 38 AD3d 269 (1st Dept. 2007); Holiday v. Jones, 36 AD3d 557 (1st Dept. 2007). In reference to the sprint report, this Court finds such conduct here. Plaintiff filed two separate demands requesting the 911 call and the sprint report. These separate demands were made in October 1998 and 2002. Defendant did not respond to the 1998 D I and in its 2002 response to plaintiff's D I, defendant represented that they are unaware of such document or tape. This would lead plaintiff and this Court to believe that they in fact consulted with the NY Police Department and "looked" for the 911 tape and sprint report. However, over four years later when plaintiff subpoenaed the documents from the police department the sprint report is now available although the 911 tape is not. The sudden appearance of the Sprint report in 2006 approximately four years after defendant represented that they were unaware of its existence and would turn it over upon receipt is questionable. It should be noted that this document only saw the light of day when plaintiff herself subpoenaed it. This Court does not have the liberty of reviewing the notice of trial or the moving papers that were the subject of the 2003 Decision where all legitimate discovery was determined to be complied with. Nor is this Court willing to speculate that the decision was made with the knowledge that the Sprint report would be forthcoming upon it's discovery and receipt. Nonetheless, this Court finds that defendant's representations as detailed in their response to the 2002 D I and the subsequent lack of follow-up were willful, deliberate and contumacious representations to avoid discovery. In the very least the representation and the actions taken to ensure disclosure and proper response to plaintiff's D I were disingenuous and negligent.
Additionally, the FDNY report contained information relevant to the testimony of defendant Smith given in his 1999 deposition is "material and necessary" to the prosecution of this case. C.P.L.R. § 3101 (a).
In Houston v. City of New York, 256 AD2d 277 (1st Dept.1998), the First Department held that preclusion of the Sprint report, which was turned over late due to defendants failure to produce the document despite a court order and the subsequent missing document charge calling for an adverse inference based upon the preclusion and the consequent inability to enter the document into evidence was improper. The Court reasoned that despite the document's late production, the reasons for which it deemed irrelevant, it nonetheless corroborated the defendants position that the officer was responding to an emergency situation. "Other non-truth impairing remedies, exclusive of the suppression of this document, whose content reflected defendants' position throughout, were available to address the City's dereliction." Houston at 382 (emphasis added).
Such is not the case here. The Sprint report as well as the FDNY report do not corroborate the defendants' position that the officer was responding to an emergency operation. There is no record of the 10-13 in the Sprint report at the time of or surrounding time of the accident. Further, the FDNY CAD report lists the 10-13 as unconfirmed. It is important to note that the FDNY CAD report was not turned over until the eve of trial. During oral argument, Defendants represented that this document was found in their very own case file, with no explanation as to how long it had been there waiting for diligent exposure although it is certified April 24, 2002. The reasons for delay of disclosure which this Court applies to the Sprint report and the FDNY CAD report as detailed above are not irrelevant and even if deemed so, do not corroborate the defendants position. Thus, no other non-truth impairing remedy exclusive of preclusion is available. Defendant Smith may still testify as to his personal recollection of the facts.
Defendant moves for an Order, precluding plaintiff's inadmissable hearsay testimony, precluding plaintiff from questioning defendant about several issues that were detailed in the defendant's motion and precluding the plaintiff from questioning the defendant as to the provisions of the NYPD patrol guide. Finally, defendant moves for an order precluding plaintiff's expert from testifying beyond the scope of his report, specifically from testifying as to the MRI and EMG reports.
In response to defendants position as to the MRI reports, plaintiff submitted for review the report of treating physician, Dr. Leonard R. Harrison, Jr. and the EMG report of Dr. Ramon Valderrama .
"While the expert witnesses's testimony of reliance upon out-of court material to form an opinion may be received in evidence, provided there is proof of reliability, testimony as to the express contents of the out-court material is inadmissible." Hambsch v. New York City Tr. Auth., 63 NY2d 723 (1984); Wagman v. Bradshaw, 292 AD2d 84 (2nd Dept. 2002).
To be admissible, expert opinion evidence must be based on one of the following: (1) personal knowledge of the facts upon which the opinion rests; (2) facts and material in evidence, real or testimonial; (3) material not in evidence provided that the out-of court material is derived from a witness subject to full cross-examination; and (4) material not in evidence provided that the out-of-court material is the kind accepted in the profession as a basis in forming an opinion and the out-of court material is accompanied by evidence establishing its reliability.
It should be noted that in the instant case it is unclear whether the MRI reports and EMG reports are available to be submitted as evidence in Court. Further, it is unclear to this Court whether Dr. Harrison personally reviewed the MRI or EMG reports. See Trombin v. City of New York , 33 AD3d 564 (1st Dept. 2006). Plaintiff does not assert the aforementioned in her moving papers nor did plaintiff submit any medical reports from a doctor who may have conducted the MRI. However, it is apparent that Dr. Harrison relied on the EMG reports as a basis for confirming his diagnosis and not as the basis of forming it. Further, it is apparent that Dr. Valderamma's EMG report offers a detailed interpretation of the EMG. Accordingly, this report may be shown to be reliable. Wagman v. Bradshaw, 292 AD2d 84. But this is not the only requirement to allowing expert testimony from secondary sources. Plaintiff must also show that Dr. Harrison has personal knowledge of the MRI films or the EMG or have these films available for entry into evidence provided they meet the requirements of C.P.L.R § 4532-a.
The facts of the instant case are similar to Wagman. As such, permitting Dr. Harrison to testify as to the content of the EMG report would constitute "a subjective interpretation of [films]" and would deprive defendants of the right of cross examination. Accordingly, without the production of the EMG or MRI film which meets the requirements of C.P.L.R. § 4532-a or Dr. Harrison's testimony that he personally reviewed the EMG or MRI film, even if Dr. Valderamma's report is shown to be reliable, Dr. Harrison may not testify as to the content of Dr. Valderamma's EMG report or the MRI report. However, the Court will issue the limiting instruction that Dr. Harrison is permitted to testify as to any subsequent actions and the succeeding course of treatment. With respect to the issue raised by defendant regarding plaintiff's use of the NYPD Patrolman's Guide, it is well established that violations of the Guide may not serve as a basis for imposing liability however upon the ripeness of this issue at trial, the guidebook may be used for impeachment and credibility purposes. Lubecki v. City of New York, 304 AD2d 224 (1st Dept. 2003); Campos v. City of New York, 195 Misc 2d 624 (2003). With respect to plaintiff's prospective hearsay testimony, defendant is directed to make objections at the appropriate time. Finally, with respect to the preclusion of questions as detailed in defendant's motion, defendant Smith has already testified to these items in the deposition and thus, plaintiff may use this deposition for impeachment and credibility purposes or read the document into the record. C.P.L.R. § 3117(a). Notwithstanding, defendant is further directed to make the objection at the appropriate time.
The foregoing constitutes the Decision and Order of the Court.