Opinion
5830/06.
Decided January 12, 2009.
Plaintiffs were represented by Thomas O'Malley, Esq., Morelli Ratner, PC, NY, NY.
Defendants were represented by Robin, Harris, King Fodera, NY, NY.
In this case, the infant plaintiff, who was then a six year old child, had attended a movie in the Anshutz Corporation, Regal Entertainment Group and United Artists Theaters' [hereinafter Theater Defendants] multiplex theater with a group of children as part of an activity sponsored by defendant Police Athletic League [hereinafter PAL] . After the movie ended, as the group was descending an elevator, plaintiff was allegedly pushed by an unruly teenaged boy and fell, injuring his face and head.
The Theater Defendants move for summary judgment arguing that the plaintiff cannot establish a prima facie case. However, it is well established that it is "[t]he proponent of a summary judgment motion [that] must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers." Winegrad v. New York University Medical Center, 64 NY2d 851 (1985.) The sole evidence relied upon by the Theater Defendants on their motion was the deposition testimony of the infant plaintiff. The deposition transcript reveals that a notary public administered an oath to this eight year old. The oath was preceded by the following voir dire:
Q.Do you know why you are here today?
A. No.
Q.No?
You have to speak a little louder.
A.Yes.
Q.Can you tell me why you are here?
A.For my head.
Q.For your head, with respect to why your head hurts?
A.Yes.
Q.How old are you?
A.Eight.
Q.Do you know when you were born?
When is your birthday?
A.May 6th.
Q.May 6th. Okay.
What year in school are you?
A.Huh?
Q.What grade are you in?
A.Second.
Q.Second. Okay.
Do you know the difference between a lie and the truth?
A.Yes.
Q.Can you tell me what the difference is?
A.Its like that I am in third grade but I'm really not.
Q.Let me ask you, what does it mean to be truthful?
(no response)
Q.You don't know?
A. No.
Q.Do you know what it means to tell a lie?
A. No.
Q. No.
(Whereupon a discussion was held off the record)
Q.Are you eight feet tall?
A. No.
Q.If you were to say you were eight feet tall, would that be a lie?
A.Yes.
Thereafter the infant plaintiff was sworn by the notary public without objection. There is no videotape of this proceeding, so that we are unable to determine in what manner the child was actually sworn and how the child responded.
In later questioning it developed that the plaintiff did not know how many children were in his group of five, six and seven year olds or how many children came on this trip with PAL. At one point the plaintiff spontaneously offered that when he "was going down people was coming behind, like other people was coming behind me, and we was walking straight and they was coming down, and they just pushed through us, and I fell." Although the movie he went to see was "half crowded" he did not see whether other people were coming out of other movies. There were people on the escalator who were not with his PAL group. He did not see who was pushing because the people were behind him but he felt somebody's hands "big people's hands" and "felt somebody ran through [him]." After he was pushed he saw somebody else trying to push through.
The issue of how and under what circumstances a child's deposition testimony may be used has come up in varying contexts. In one recent instance, the use at trial of the pre-trial deposition of an eight year old child who fell from a ladder in a playground became the subject of an in limine motion brought before opening statements began. Carrasquillo ex rel. Carrasquillo v. City of New York, ___Misc.3d.___,866 NYS2d 509 (Sup Court, Kings County, 2008). There, as here, a notary public had administered the oath. There, as here, some questions were directed to the child about whether she knew the difference between the truth and a lie, but there were no questions directed to determine whether the child understood the consequences of telling a lie.
The Carrasquillo Court deemed the testimony unsworn in the absence of a judicial determination of competency. In so doing, the Court considered the provision in the Criminal Procedure Law that presumes the incompetence of a child under the age of nine [CPL § 60.20(2)] and opined that in order to "overcome the presumption of incompetence to testify under oath, an infant must demonstrate sufficient intelligence and capacity to justify reception of his testimony and have some conception of obligations of an oath and consequences of giving false testimony . . . it [is] the duty of the Trial Judge to examine into the witness' competency . . . In civil actions, the usual rule is that a child may not testify unless under oath or pursuant to affirmation . . .Our courts have already held that the examination of an infant by a notary public is improper. This is premised on the fact that the notary public has no authority to make the inquiry and determination of the infants' competence. . . . Some of our trial court judges have permitted the taking of deposition of those infants found able to be sworn but only under the direct supervision of the court." . Id at 513. To the same effect are the decisions in Cavuoto v. Smith, 108 Misc 2d 221 (Sup. Court, Monroe County,1981) citing Shine v. Sonastone Realty Corporation, 22 AD2d 706 (2d. Dept. 1964).
Indeed, there is no bar to the taking of an infant's testimony as long as appropriate standards are met. Thus, our courts have in fact held that it is inappropriate to summarily refuse to allow the examination of an infant, and have indicated that an infant, even one who was allegedly brain damaged was not incompetent to testify as a matter of law, Tuohy v. Gaudio, 87 AD2d 610 (2d Dept. 1982), but required a preliminary examination to determine competency. Id. See also Almy v. Pappas, 134 AD2d 946 (4th Dept. 1987)("There is no question that the testimony of the infant plaintiff who was seven years old at the time her testimony was sought, would properly be discoverable if she is competent . . . however, the court should examine the infant plaintiff preliminarily and determine if she possesses sufficient capacity and is competent to testify, and if so whether the examination should be in the presence of a judge").
The need for judicial oversight is underscored in People v. Carrington, 18 Misc 3d 1147 (A) (County Court, Westchester County, 2008), where the Court chose to include twelve pages of the voir dire of the videotaped grand jury testimony of a seven year old child witness in order to illustrate the principle that "perfunctory one word or non-verbal responses to mostly leading questions do not demonstrate that a child witness understands that there is a special moral duty to tell the truth while under oath, even if the child witness can differentiate between a truth and a lie." Id. The Court's description and analysis of this voir dire is instructive: "It was only after persistent prodding and asking leading questions and eventually demanding that the child look in the camera and promise to tell the truth that the prosecutor finally elicited the answer she was seeking. However, merely getting the answer does not establish that the child understood that he had a moral duty to tell the truth and /or that he understood the nature of an oath. . . . Further, the Court had the unique opportunity to view the child's demeanor, body language, facial expression and level of attentiveness while being voir dired' by the prosecutor. The child refused to make eye contact with the prosecutor for most of the examination, seemed extremely distracted, and at one point the prosecutor had to physically pick him up and sit him down next to her to be able to question him." Id.
In our circumstances, the testimony of the eight year old plaintiff was the lynchpin of the defendant's motion. In the voir dire that was taken prior to the plaintiff's being sworn by a notary public, the child gave perfunctory one word contradictory answers and his actual swearing in was not, of course, placed on the record. Although he was ultimately able to identify an obviously untrue statement as a lie, there were no questions directed to him as to his understanding of the consequences of telling a lie under oath.
The taking of the plaintiff s deposition testimony under oath under these circumstances cannot be sustained and thus the statements he made in the deposition are tantamount to unsworn statements. Unsworn deposition testimony cannot sustain the movant's burden. See Medina v. City of New York, 19 Misc 3d 1121 (A) (Supreme Court, Kings County, 2008) (where the movant relied almost entirely upon the EBT testimony of the infant plaintiff who had apparently not been sworn, the Court held that such unsworn testimony is insufficient to support its summary judgment motion).
It is of no moment that no objection was made to the taking of this testimony since this is not a defect that can be waived. "CPLR § 3115(d) provides that objections to the competency of a witness or to the admissibility of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if objection had been made at that time. An objection to the competency of a witness due to infancy is not obviated or removed by raising it at the time of deposition because the state of infancy does not change simply by raising the objection." Carrasquillo, supra, 866 NYS2d 512.
Ordinarily, the inquiry would end at this juncture because the movant has not met his burden of going forward. However, this Court is aware that courts have not universally approved of the sua sponte determination of dispositive issues. See e.g. Frasier v. State, 11 Misc 3d 497 (NY Court of Claims, 2005) (discussing sua sponte dismissals); Cruickshank v. Dukes, 1 Misc 3d 53 (Supreme, Court, Appellate Term, 2d Dept., 2003) (holding it was improper for the trial court to refuse to reconsider a determination it made sua sponte), but see O'Connor v. Singh, 16 Misc 3d 30 (Supreme Court, Appellate Term, lst Dept. 2007) (holding over a strong dissent that "while a party generally may not challenge the form of an adversary's motion submission for the first time on appeal this rule should not be extended so as to preclude a motion court from rejecting on its own initiative a submission palpably deficient in form.")
Accordingly, this Court will assume that the plaintiff was properly sworn. However, this does not obviate the difficulties with the defendants' submissions. For they have cast the burden on the plaintiff before demonstrating that they are entitled to judgment as a matter of law. Indeed, it is the defendants rather than the plaintiff who must demonstrate in the first instance that as a matter of law they had no duty to supervise the escalator and that they did not negligently allow a crowd to gather. Their submissions fell short of accomplishing those goals. In their submissions they made no showing of what, if any, crowd control measures they took to ensure the safety of patrons in this multiplex theater. Nor did they provide any evidence of the fact that a crowd had not gathered. The infant plaintiff stated that he did not see what was happening behind him.
Even assuming arguendo that the defendants' somehow met their burden, the plaintiff demonstrated to this Court's satisfaction that issues of fact exist. In a "crowd control" case the plaintiff must show that "he was unable to find a place of safety or that his free movement was restricted due to the alleged overcrowding conditions." Palmiere v. Ringling Bros. and Barnum and Bailey Combined Shows, Inc., 237 AD2d 589 (2d Dept. 1997). According to the plaintiff the children were lined up on either side of the escalator and "some of the girls, the girls was usually like in the middle and we was like right there, and then they came. They was right there. So they squeezed through the middle and they pushed the girls, and the girls fell into us, and that's when some girls fell and me and some other people fell." Under these circumstances a question of fact is presented s to whether the infant plaintiff could have found a place of safety. Unlike the circumstances in Jokelson v. Allied Stores, 31 AD2d 200 (1st Dept. 1968) and other cases cited to us by the movants, e.g., Hsieh v. New York City Transit Authority, 216 ad2d 531(2d Dept. 1995), there is evidence here that there was a crowd and that there were unruly persons pushing their way through.
Thus, upon the evidence submitted by the defendants, at best, there are presented fact questions which cannot be resolved upon this motion.
The defendants' motion is denied.
This constitutes the decision and order of the Court. J.S.C.