Opinion
Index No. 500883/2018
12-24-2023
Caradine E. Clarke, Plaintiff, v. Youba Toure, YOUBA TOURE d/b/a KAHO MARKET, KAHO INTERNATIONAL MARKET CORP., KAHO INC., KAHO MARKET CORP. and MTT SALES & SERVICES CORP. d/b/a GROCERY & HALAL MEAT MARKET, Defendants.
Popkin & Popkin, LLP, New York City (Eric F. Popkin of counsel), for plaintiff. Kelly, Rode & Kelly, LLP, Mineola (Dennis S. Connor of counsel), for defendants Youba Toure and Youba Toure d/b/a Kaho Market.
Popkin & Popkin, LLP, New York City (Eric F. Popkin of counsel), for plaintiff.
Kelly, Rode & Kelly, LLP, Mineola (Dennis S. Connor of counsel), for defendants Youba Toure and Youba Toure d/b/a Kaho Market.
AARON D. MASLOW JUSTICE
The instant action alleged personal injuries resulting from the negligent operation by Defendant Youba Toure (Defendant or Defendant Toure) of a van which struck Plaintiff Caradine E. Clarke (Plaintiff) on December 10, 2017, at an intersection in Brooklyn (Kings County), New York. It was alleged that as Plaintiff was crossing Fulton Street in a southerly direction, in the left-sided intersection crosswalk parallel to Arlington Place, Defendant Toure made a right turn from southbound Arlington Place onto westbound Fulton Street and struck Plaintiff, causing her serious injuries, including multiple fractures.
The matter came before this Court for trial on a bifurcated basis earlier this year. A trial on liability was conducted on May 23-24, 2023. On May 24, 2023, the jury issued a verdict finding that Defendant Toure was solely negligent and that his negligence was a substantial factor in causing the accident. A trial on damages was conducted on May 30-31 and June 1, 2023. After hearing testimony regarding multiple fractures sustained by Plaintiff, the jury issued a verdict on June 1, 2023, awarding Plaintiff $750,000 for past pain and suffering, $750,000 for future pain and suffering, $20,000 for future medical expenses, and $25,000 for future pharmaceutical expenses. All damages for the future were awarded with a finding that the compensation was to be for eight years. A judgment was entered on December 18, 2023.
During the trial, several issues arose and were determined in response to motions in limine, objections, or applications. This decision amplifies upon the reasoning articulated on the record for the Court's rulings with respect to four issues.
Reading of Defendant Toure's Deposition Testimony
On May 23, 2023, Defendants' counsel made an in limine motion to permit him to read from Defendant Toure's July 30, 2019 deposition testimony during Defendants' direct case. In addition to submission of memoranda of law by counsels, the Court heard oral argument. The reasons offered in support of Defendants' counsel's motion were that Defendant Toure allegedly resided beyond 100 miles from the place of trial - in Africa - and was out-of-state, counsel was unable to procure his client's attendance despite diligent efforts, and exceptional circumstances and the interest of justice substantiated it. Defendant's counsel argued that CPLR 3117 (a) (3) (ii), (iv), and (v) permitted the reading of Defendant Toure's deposition testimony - at least the portions of his testimony which supported his account of how the accident transpired, which was that Plaintiff slipped and did not make contact with Defendant Toure's vehicle.
In support of Defendants' counsel's motion, he submitted an affidavit from an investigative agency, which was marked as Defendants' Exhibit A for Identification:
1. I am the owner/president of Conversano Investigations, Inc., a private investigations firm licensed through the State of New York.
2. My company was retained by the Law Office of Kelly, Rode & Kelly to locate their client, Youba Toure and to assist with producing him for the trial of the above caption[ed] action in Kings County Supreme Court.
3. Youba Toure, date of birth [ ]/48, was formerly a principal of Kaho Market located at 1193 Fulton Street in Brooklyn, NY. As of July of 2019, his cellular telephone number was [ ]. His business telephone number was [ ].
4. We commenced an investigation and determined that his last known cellular telephone number is no longer in service and that he is no longer an owner/operator of Kaho Market.
5. NYS DMV searches revealed that he no longer has any vehicles registered in the State of New York, and his last driver's license renewal dates back to 2019.
6. Youba Toure does not currently own any real estate or vehicles in the State of New York[.]
7. Our investigations revealed the most recent NY addresses linked to Youba Toure to be 2018 [ ] Street, No.3R, Brooklyn, NY; 9327 [ ], #6A, Brooklyn, NY; 1193 Fulton Street, Brooklyn, NY and 1172 [ ] Street, #1, Brooklyn, NY. Field investigations at all of these addresses revealed that he does not currently live or work at these addresses.
8. Interviews were conducted with relatives and former business associates of Youba Toure, and we were informed that Youba Toure has permanently returned to his Native African Country.
9. Expanded investigations were conducted which revealed that Youba Toure had prior associations with two businesses in Cincinnati, Ohio, both of which he apparently separated from in 2020.
10. We identified a next of kin/relative for Youba Toure of [ ], believed to be the daughter of Youba Toure, who is a resident of Cincinnati, Ohio. Efforts were made to contact and interview Ms. [ ] to no avail.
11. The results of our investigations indicate that Youba Toure has severed his business associations in New York and Ohio and has permanently left the United States and returned to his Native African Country.
/s/
Sheila Urce
The relevant CPLR provisions are as follows:
(a) Impeachment of witnesses; parties; unavailable witness. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used in accordance with any of the following provisions:
...
3. the deposition of any person may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had the notice required under these rules, provided the court finds:
(i) that the witness is dead; or
(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or
(iv) that the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts; or
(v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court[.] (CPLR 3117 [a] [3].)
Besides arguing that Defendant Toure was at a greater distance than one hundred miles from the place of trial and out of the state, counsel was unable to procure his client's attendance despite diligent efforts, and exceptional circumstances and the interests of justice militated in favor of reading the transcript (including the fact that Plaintiff's demand was far higher than the policy limit and Defendant Toure potentially would be liable for any excess above the policy limit), counsel cited to several cases.
In Nazito v Holton (96 A.D.2d 550 [2d Dept 1980]), cited by Defendants' counsel, the court held that the trial court did not commit reversible error by allowing the defendant's attorney to read his client's deposition into evidence inasmuch as the client was in the army. This case is inapropos because Defendant Toure's absence was self-induced.
In another decision cited by Defendants' counsel, Matter of Ratner v Ratner (73 Misc.2d 374 [Fam Ct, NY County 1973]), the petitioner, who established permanent residence in Israel, sought child support from the father. The court found that "deprivation and hardship would be inflicted on them both if she were required to appear in person in this proceeding, and that she is the only person capable of testifying in support of the petition," because she contributed to the support of herself and her child (id. at 378). The court allowed a deposition of the petitioner to be taken in Israel and used at the hearing. The court relied on the "exceptional circumstances" provision of CPLR 3117 (a) (3) (v): "Respondent concededly has failed to make regular support payments for his son; and even if the court were to consider petitioner's trip to New York to prosecute this action as an item of child support for which respondent would be liable, petitioner might fail to collect such reimbursement either because of respondent's lack of means or because of difficulty in enforcement. Thus, her trip might well result in an increased unpaid amount of child support." (Id. at 378-379.) Exceptional circumstances do not exist here inasmuch as Defendant Toure obviously absented himself from the trial proceedings because a claim of negligence was being made against him. In Matter of Ratner v Ratner, the petitioner had not avoided a claim against her; rather she was asserting a claim against her husband for child support.
This Court noted that the affidavit submitted by Defendants' counsel was hearsay and, therefore, not probative to justify reading from the client's deposition transcript. It did not provide sufficient details, as other than identifying a possible daughter the names of relatives and former business associates were not mentioned. The efforts made to contact the possible daughter were not set forth. However, even if it was deemed probative, the affidavit merely demonstrated that Defendant Toure procured his own absence from the trial. CPLR 3117 (a) (3) (ii) specifically provides that a deposition of a witness located more than 100 miles away or out of state may not be offered by a party if that party procured the absence.
While quite brief, the memorandum decision of the Court of Appeals in Dailey v Keith (1 N.Y.3d 586, 587 [2004]) was instructive and deemed controlling: "In exercising their discretion, the courts below did not err as a matter of law in refusing to allow the introduction of defendant's deposition testimony at trial as evidence-in-chief. By voluntarily leaving the state and refusing to return for trial, defendant procured her own absence and, therefore, failed to satisfy CPLR 3117 (a) (3) (ii) (see United Bank v Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 264-265 [1976]). Thus, the deposition testimony was not admissible as of right."
Seemingly contrary to Dailey v Keith, the Appellate Division, Second Department, sustained the use of deposition testimony of a nonpresent defendant in Arad v Hanza, LLC (109 A.D.3d 776 [2d Dept 2013]). The court held:
Contrary to the plaintiff's contentions, the Supreme Court did not err in permitting the defendants to introduce the deposition testimony of the defendant Amadou Bah at trial due to Bah's unavailability, in light of the diligent but unsuccessful efforts of the defendants to locate him (see CPLR 3117 [a] [3] [iv]; cf. Dailey v Keith, 306 A.D.2d 815 [2003], affd 1 N.Y.3d 586 [2004]). The court also properly denied the plaintiff's request for a missing witness charge as to Bah, as "a genuine inability to locate a witness will foreclose a missing witness instruction" (People v Savinon, 100 N.Y.2d 192, 198 [2003]; see People v Bryant, 11 A.D.3d 630, 631 [2004]). (109 A.D.3d at 776.)
A reading of the briefs submitted to the Appellate Division reveals that the defendants' counsel in Arad v Hanza, LLC submitted an investigator's affidavit relating the efforts to locate the defendant driver, similar to the one submitted by Defendants' counsel herein (see brief for plaintiff-appellant at 1-2, 10-13, available at 2012 WL 12969461, brief for defendants-respondents at 6-8, 12-18, available at 2012 WL 12942001).
Frankly, this Court was unable to completely reconcile the decision in Arad v Hanza, LLC with that in Dailey v Keith. From the description of the affidavit information provided by the investigator in Arad v Hanza, LLC, as per the briefs, one might offer the observation that it was more detailed than that contained in the affidavit submitted by Defendants' counsel. Moreover, there was other testimony - live - from the plaintiff and his friend in Arad v Hanza, LLC that substantiated the version of how the accident transpired, as testified to by the defendant at the deposition. In the instant case, no other evidence backed up the version offered by Defendant Toure that Plaintiff had slipped and there was no contact between them. Ultimately, however, this Court determined that it was bound by the decision in Dailey v Keith since it was issued by the Court of Appeals (see Maple Med., LLP v Scott, 191 A.D.3d 81, 90 [2d Dept 2020]; Mountain View Coach Lines, Inc. v Storms, 102 A.D.2d 663 [2d Dept 1984]).
In any event, decisions of other lower courts considering the issue of allowing a nonappearing party's deposition testimony to be read were in line with this Court's determination. Since a party will not be permitted to benefit from his own misconduct, a party will not be permitted to place in evidence his own deposition where his absence is his own doing (see Jobse v Connolly, 60 Misc.2d 69 [Civ Ct, Bronx County 1969]). A plaintiff may not have his own deposition testimony read where his absence was self-procured; the excuse that he has a fear of flying is unavailing (see McGuigan v Carillo, 150 Misc.2d 881 [Sup Ct, Queens County 1991]).
In CPLR 3117, subparagraph (iv) of paragraph 3 of subdivision (a) allows a party to use a witness' deposition if the party "has been unable to procure the attendance of the witness by diligent efforts[.]" From a logical perspective this cannot apply to a party who disappears and his attorney is unsuccessful in locating him. It obviously refers to a party being unable to procure someone else's attendance ( but see Arad v Hanza, LLC, 109 A.D.3d 776 ).
Similarly, subparagraph (v) - "exceptional circumstances exist... in the interest of justice" - logically does not apply to a party who has procured his own absence. That damages would likely exceed the policy limit is a reason all the more so for Defendant Toure to have attended the trial. It would have been incongruous for this Court to enable him to avoid the default rule against reading one's own deposition on direct as a reward for absenting himself.
In light of the foregoing, this Court denied the motion in limine of counsel for Defendants to be permitted to read from Defendant Toure's deposition transcript on direct.
Plaintiff's Ambulating to Witness Box in Pushed Wheelchair in Jury's Sight
Beginning on May 23, 2023, and more than once later on, Defendants moved to compel Plaintiff to be seated in the witness box prior to the entry of the jury into the courtroom. Plaintiff had appeared in a wheelchair and was wheeled about by an aide. Counsel for Defendants argued that the jury's seeing Plaintiff being wheeled to the witness box was prejudicial, i.e., inflammatory, and would improperly affect the jury's objective consideration of the evidence.
. There was no claim that Plaintiff was malingering (cf. People v Russo, 223 A.D.2d 484 [1st Dept 1996]).
This Court was unable to locate a precedent directly on point. However, certain case law guided this Court to permit Plaintiff to ambulate to the witness box via an aide pushing her in the wheelchair and to deny the applications against such. Defendants' objections were denied.
The case law located related to the physical presence of a party where he could be seen by the jury. In Monteleone v Gestetner Corp. (140 Misc.2d 841 [Sup Ct, NY County 1988]), the court held that a ten-year old boy, born without arms and with substantially shortened legs, could be excluded from the liability portion of his trial against companies allegedly responsible for his condition, as his presence would prejudice the jury, and his youth and naivete precluded his ability to assist his counsel in any meaningful way. After reviewing case law on the topic of excluding parties from being present in the courtroom during trial, the court found that in the context of a trial against several corporate defendants, the appearance of the plaintiff's "deformed young body could not help but impair the jury's ability to objectively perform its tasks" in determining liability (140 Misc.2d at 846).
When a plaintiff is both physically and mentally incapable and his mental capacity prevents him from assisting counsel in any meaningful way, then the decision to exclude him from the liability phase of a trial lies within the sound discretion of the trial court (see Caputo v Joseph J. Sarcona Trucking Co., Inc., 204 A.D.2d 507 [2d Dept 1994]).
Harvey v Mazal Am. Partners (79 N.Y.2d 218 [1992]) was a case in which an injured construction worker sought damages from injuries sustained from falling from an unsecured wooden plank. His post-accident condition included serious and permanent brain and spinal cord damage. The issue therein relevant to the case at bar was whether the trial court committed reversible error by exhibiting the plaintiff before the jury and allowing counsel to pose questions to the plaintiff, who was not sworn. The trial judge justified her decision to allow the questioning on the grounds that the plaintiff was not a witness who needed to be sworn, but an exhibit whose physical condition was at issue at trial. The Court of Appeals held that there was no abuse of discretion. The defendants argued that this presentation was designed to inflame the jury and that their clients had been prejudiced as a result. The Court of Appeals noted prior case law permitting a plaintiff to exhibit his injured arm to the jury, to leave the witness stand assisted, and to exhibit himself writing his name and taking a drink of water. It held that the exhibition of the plaintiff answering questions did not constitute an abuse of discretion.
There was no question in this Court's mind that it was proper for the jury to observe Plaintiff wheeled to the witness box by an aide during the damages phase of the trial. There was more of an issue during the liability phase inasmuch as that concerned who, if anyone, was at fault for the accident. Would the jury be prejudiced seeing Plaintiff being wheeled to the witness box during that phase of the trial?
This Court noted that the Court of Appeals in Harvey v Mazal Am. Partners referenced the decision in Clark v Brooklyn Hgts. R.R. Co. (177 NY 359 [1904]), wherein the trial judge had permitted the plaintiff to leave the witness stand assisted. Considering that the testimony to be adduced - that Defendant Toure struck Plaintiff - would be unrefuted , this Court believed that seeing Plaintiff wheeled to the witness box did not prejudice Defendant Toure during the liability phase of the trial.
. This Court determined that it was not going to permit Defendants to read into evidence on their direct case the deposition testimony of Defendant Toure - the only statement existing that Plaintiff was not struck by Defendant Toure -, as discussed supra.
In Carlisle v County of Nassau (64 A.D.2d 15 [2d Dept 1978]), the court considered the issue of a plaintiff, shot by a detective employed by the defendant and confined to a wheelchair, being excluded from jury selection by the trial court. In a stirring discourse on the right to a jury trial, Justice Vito Titone reviewed the history in this country of the right to a jury trial in civil cases. "In my opinion, therefore, the fundamental constitutional right of a person to have a jury trial in certain civil cases includes therein the ancillary right to be present at all stages of such a trial, except deliberations of the jury (Leonard's of Plainfield v Dybas, 130 NJL 135; Odum v Corn Prods. Refining Co., 173 Ill.App. 348 [parties interested cannot be excluded]; Ziegler v Funkhouser, 42 Ind App 428 [every litigant has a right to be present in person and be heard by counsel on the trial of his case]). Such right is basic to due process of law (Leonard's of Plainfield v Dybas, supra)." (64 A.D.2d at 18 [emphasis added].) In the case before it, the Appellate Division, by a three to two vote, held that denial of the right of the plaintiff to be present during jury selection was prejudicial per se. "[A] judicial determination that the physical presence of a party, which he has not affected, may be the basis for precluding such party from any stage of a trial, is fraught with danger in its implications" (id. at 20-21). Justice Titone's opinion cited with approval the Florida Supreme Court decision in Florida Grayhound Lines v Jones (60 So.2d 396, 397 [Fla. 1952]), wherein that court wrote:
One who institutes an action is entitled to be present when it is tried. That, we think, is a right that should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiff's right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries which he was trying to prove the defendant negligently caused. The appellee was properly present. If the use of stretcher and attendants was affected there would be occasion for the court to regulate the appearance to prevent the opposite party from being victimized and the jury from being deceived by the subterfuge, but no such deceit is claimed to have been practiced in this trial.
There was no subterfuge or deceit engaged in with respect to the plaintiff's use of a wheelchair in Carlisle v County of Nassau and, so, the judgment in favor of the defendant was reversed and a new trial ordered.
The issue in the instant case did not implicate exclusion from any part of the trial, but rather whether observing Plaintiff ambulate in a wheelchair pushed by an aide, especially during the liability phase, instead of her being present in the witness box prior to the jury's entrance, was prejudicial. This Court took from Justice Titone's opinion in Carlisle v County of Nassau that a party should not be denied the right to participate in all aspects of her case merely because of the party's physical condition. Obviously the right to be present in the courtroom in a wheelchair was not sought to be denied. But the right to be present was not the only right considered by this Court. There was also the right to testify in support of her case - even as to the issue of liability (see CPLR 4512). That right included ambulating to the witness box in whatever condition a party finds herself in. This Court was of the view that a party has the right to ambulate to the witness box in a wheelchair, assisted by an aide, if that is how she moves forward. A party who ambulates in a wheelchair should not be treated differently than someone who walks without any impairment. Forced to be seated beforehand in the witness box while other witnesses can walk unassisted shames a person, and compels the person to feel degraded in the eyes of the law. This Court was not going to be party to such degradation, especially considering that it felt the jury would not be prejudiced.
. "CPLR 4512 has abolished, as a general matter, the common law rule that a party or other person with an interest in the subject matter of the particular litigation is incompetent to testify" (Vincent C. Alexander, Prac Commentaries, CPLR 4512).
Nowadays, people use assistive walking devices, including wheelchairs, in many aspects of life, such as riding public transportation, eating out, shopping, enjoying cruises, and attending worship services, political gatherings, theaters, and sporting events. This Court did not think the jury would attach any particular significance to observing Plaintiff, who was a senior citizen, ambulate toward the witness box in a wheelchair, being pushed by someone. Had Plaintiff been of a younger age, there might be more merit to Defendants' argument as the jury might have surmised that the accident at issue caused her having to use a wheelchair. Until they heard the testimony in the damages phase of the trial, if one was to be held, the jury could not even be certain that the accident was the proximate cause of the use of the wheelchair.
Finally, what influenced this Court in making its determination that Plaintiff would be permitted to ambulate to and from the witness box in a wheelchair while being pushed were observations related in the U.S. Supreme Court's decision in Tennessee v Lane, 541 U.S. 509 [2004], an action commenced by paraplegic plaintiffs alleging that Tennessee and a number of its counties had denied them physical access to that state's courts. The Supreme Court held that as it applied to the class of cases implicating the fundamental right of access to the courts, Title II of the Americans with Disabilities Act (ADA) constituted a valid exercise of Congress' authority under § 5 of the Fourteenth Amendment to enforce that Amendment's substantive guarantees. Among the observations made by the Court were:
• "Congress learned that many individuals, in many States, were being excluded from courthouses and court proceedings by reason of their disabilities," as testified to by persons describing the physical inaccessibility of local courthouses (id. at 527).
• The volume of "evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services" was substantial (id. at 528).
• There is a "well-established due process principle that, 'within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard' in its courts" (id. at 532 [quoting Boddie v Connecticut, 401 U.S. 371, 379 (1971)]).
Inasmuch as there is a fundamental right of a party to take the witness stand, these policy considerations animating the Supreme Court's decision to apply the ADA to state courthouses likewise were taken into consideration by this Court in denying Defendants' applications to mandate Plaintiff to be pre-seated in the witness box for her testimony to the jury. The decision in Tennessee v Lane clearly evidenced a public policy that disabled people have complete access to courthouses, which would include the ability to take the witness stand in front of the jury by ambulating toward it, just as an abled person would.
Charging the Jury on a New York City Traffic Regulation
On May 24, 2023, before the jury was charged on liability, Defendants' counsel made an application to charge a New York City traffic regulation, arguing that Plaintiff was negligent if she violated it. While I permitted the regulation to be considered in determining whether Plaintiff was negligent, I did not charge that a violation of it constituted negligence per se. In doing so, my determination was consistent with the decision in Pinto v Tenenbaum (35 Misc.3d 1201 [A], 2012 NY Slip Op 50523[U] [Sup Ct. Kings County 2012]), which had quoted from appellate authority as follows:
Finally, and perhaps most significantly, Defendant contends that the jury's verdict must be set aside because the Court erred in not charging the jury with respect to three sections of the Vehicle and Traffic Law as establishing Plaintiff's negligence in bringing about the accident, i.e., Vehicle and Traffic Law §§1152, 1202, and 1214. "As a rule, violation of a State statute that imposes a specific duty may constitute negligence per se, or may even create absolute liability." (Elliot v City of New York, 95 N.Y.2d 730, 734 [2001].) Where appropriate, the jury would be charged that, if a party is found to have violated one or more provisions of the Vehicle and Traffic Law, "such a violation constitutes negligence," and the jury "cannot disregard a violation of the statute and substitute some standard of care other than that set forth in the statute." (See Pattern Jury Instruction 2:26; see also Collazo v Metro. Suburban Bus Auth., 68 A.D.3d 803, 804 [2d Dept 2009]; Tepoz v Sosa, 241 A.D.2d 449 [2d Dept 1997] ["prima facie evidence of negligence"]; but see Gross v New York City Tr. Auth., 256 A.D.2d 128, 130 [1st Dept 1998]; Ferguson v Gassman, 229 A.D.2d 464, 465 [2d Dept 1996].)
"By contrast, violation of a municipal ordinance constitutes only evidence of negligence." (Elliot v City of New York, 95 N.Y.2d at 734.) Where appropriate, the jury would be charged that, if a party violated one or more provisions of the New York City Traffic Rules and Regulations, the jury "may consider the violation as some evidence of negligence, along with the other evidence in the case, provided that such violation was a substantial factor in bringing about the occurrence." (See Pattern Jury Instruction 2:29; see also Ferrer v Harris, 55 N.Y.2d 285, 293 [1982]; Schneider v Diallo, 14 A.D.3d 445, 446 [1st Dept 2005]; Murray-Davis v Rapid Armored Corp., 300 A.D.2d 96 [1st Dept 2002]; Calafura-Erlick v Spiros Sys. 40, 259 A.D.2d 580, 580-81 [2d Dept 1999]; Giordano v Sheridan Maintenance Corp., 38 A.D.2d 552, 553 [2d Dept 1971].)
Missing Witness Charge Concerning Treating Doctors and Plaintiff's Aide
After both sides had rested in the damages phase of the trial, Defendants sought a missing witness charge on the grounds that Plaintiff had not called any treating physicians or Plaintiff's aide. The only medical expert who testified for Plaintiff was a non-treating physician, Dr. Jeffrey Kaplan, an orthopedic surgeon. This Court denied Defendants' application for such a missing witness charge.
In DeVito v Feliciano (22 N.Y.3d 159, 165-166 [2013] [plaintiff entitled to missing witness charge against defendants, who declined to call examining doctors]), the Court of Appeals discussed this issue:
An "uncalled witness" or "missing witness" charge instructs a jury that it may draw an adverse inference based on the failure of a party "to call a witness who would normally be expected to support that party's version of events" (People v Savinon, 100 N.Y.2d 192, 196 [2003]). The charge, found in Pattern Jury Instructions at 1:75, advises a jury that if a party fails to offer a reasonable explanation for its failure to call a witness to testify on a question, then the jury "may, although [it is] not required to, conclude that the testimony of [the witness] would not support [that party's] position on the question... and would not contradict the evidence offered by [the opposing party] on this question" (PJI 1:75). The jury is instructed that it "may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding" (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 N.Y.2d 73, 79 [1995]; see PJI 1:75).
The preconditions for this charge, applicable to both criminal and civil trials, may be set out as follows: (1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative testimony; (3) the witness is under the "control" of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party (see Savinon, 100 N.Y.2d at 197; People v Macana, 84 N.Y.2d 173, 177 [1994]; People v Gonzalez, 68 N.Y.2d 424, 428 [1986]; see also e.g. Brueckner v Simpson, 206 A.D.2d 448 [2d Dept 1994]).
In Chandler v Flynn (111 A.D.2d 300, 301-302 [2d Dept 1985]), the court held that it was reversible error to have not granted the defendant Avis Rent A Car's request for a missing witness charge grounded on a plaintiff's failure to call a treating physician as a witness:
It is well established that such a charge should be given where the witness is under the plaintiff's control and is in a position to give substantial, not merely cumulative, evidence (see, Oswald v. Heaney, 70 A.D.2d 653; People v. Moore, 17 A.D.2d 57). "Control" is used in a very broad sense and includes a witness under the influence of a party as well as one under a party's employment or management (see, Hayden v. New York Rys. Co., 233 NY 34; People v. Douglas, 54 A.D.2d 515) or one whom it "may be naturally inferred *** [is] of good will to the party, such as *** his physician" (Reehil v. Fraas, 129 A.D. 563, 566, revd on other grounds 197 NY 64; see also, Mashley v. Kerr, 47 N.Y.2d 892). Nevertheless, "former treating physicians, like former employees, may be neither under the control of the party nor willing to provide testimony favorable to the patient who left them to go to other doctors" (Oswald v. Heaney, supra., at p 654; see also, Pagan v. Ramirez, 80 A.D.2d 848) The burden is on the party opposing the inference to show that the witness is not available or under his "control" (see, Mashley v. Kerr, supra.; Grun v. Sportsman, Inc., 58 A.D.2d 802; Richardson, Evidence § 92 [Prince 10th ed]).
In the case at bar, Mr. Chandler failed to carry his burden in demonstrating that Dr. Diamond was a physician no longer under his control. Mr. Chandler first saw this neurologist on October 29, 1979, a few days after the accident of October 18. The doctor continued to treat Mr. Chandler in 1980 through 1982. The record is devoid of any indication that Mr. Chandler was no longer under this doctor's care at the time of trial. Thus, Mr. Chandler has not established that he left Dr. Diamond's care to go to another physician, that Diamond was not subject to subpoena, or that there were any circumstances which would create the type of hostility or ill will which would justify the failure to call him (see, Oswald v. Heaney, supra.).
We additionally note that Dr. Diamond was in a position to give important evidence. The issue as to whether Mr. Chandler had been rendered unconscious as a result of the accident was a hotly contested one. In a report dated August 27, 1982, but marked for identification only, Dr. Diamond reported that Mr. Chandler "did not lose consciousness". At trial, Dr. Diamond would have been able to testify as to this report. Moreover, since he had seen Mr. Chandler only a few days after the accident, he would have been able to testify as to whether Mr. Chandler had bruises on his head. This would have shed light on the issues of whether Mr. Chandler had lost consciousness and how serious his head injuries actually were. Thus, the court erred in failing to give the missing witness charge with regard to Dr. Diamond. No error was committed in declining to give such a charge with regard to Dr. Kornrich, another physician who treated Chandler. Although Mr. Chandler similarly failed to demonstrate that Dr. Kornrich was not within his control, his testimony would have been merely cumulative.
But the missing witness charge is not automatic when a party fails to call a treating doctor. For example, in Getlin v St. Vincent's Hosp. & Med. Ctr. of NY (117 A.D.2d 707 [2d Dept 1986]), a medical malpractice action, it was held, "[T]here is nothing to indicate that the doctor's testimony would not have been merely cumulative of the testimony of the plaintiff's treating physician and of the two experts. Therefore, the trial court properly refused to charge as requested." (Id. at 709.)
In Germe v City of New York (211 A.D.2d 480 [1st Dept 1995]), an action for personal injuries sustained from the plaintiff's truck hitting a raised manhole, the court's giving a missing witness charge on the basis that the plaintiff failed to call treating physicians (who were not the plaintiff's primary physician) was found to constitute reversible error. As to any medical opinion, "[t]he testimony of all of these physicians was cumulative to that given by plaintiff's primary treating physician" (id. at 481). Likewise, in Austin v Knowlton (234 A.D.2d 918 [4th Dept 1996]), it was held that the plaintiff's calling of treating physicians would have been cumulative; it was error for the court to have granted the defendant's request for a missing witness charge.
In a case where the plaintiff called his psychiatrist, presented the testimony of a medical expert with respect to his future medical needs, and the plaintiff's complete medical records were submitted and discussed by plaintiff's expert, the testimony of the treating physicians would have been cumulative and it was proper for the trial court to deny a missing witness charge premised on the treating physicians' not having been called to testify (see Peat v Fordham Hill Owners Corp., 110 A.D.3d 643 [1st Dept 2013]).
Further appellate case law supports the proposition that a plaintiff's failure to call treating physicians does not automatically warrant a missing witness charge requested by the defendant (e.g. Contorino v Florida Ob/Gyn Ass'n, P.C., 259 A.D.2d 460 [2d Dept 1999]; Bonner v Lee, 255 A.D.2d 1005 [4th Dept 1998]; Colezetti v Pircio, 214 A.D.2d 926 [3d Dept 1995]).
And, on the other hand, there exists more case law holding either that it was error to deny the defendant's request for a missing witness charge with respect to treating physicians not called to testify or that it was not error to grant such a request (e.g. Price v City of New York, 258 A.D.2d 635 [2nd Dept 1999]; Easley v City of New York, 189 A.D.2d 599 [1st Dept 1993]; Moore v Johnson, 147 A.D.2d 621 [2d Dept 1989]; McClure v Baier's Automotive Serv. Ctr., Inc., 126 A.D.2d 610 [2d Dept 1987].
On May 30, 2023, before the Court gave the introductory jury charges prior to opening statements at the damages phase of the trial, the parties disclosed to the Court and each other who their testifying doctors would be. Plaintiff informed the Court that Dr. Kaplan would be testifying. Defendant Toure was to call Dr. John Denton. It was at that point that Defendants' counsel was aware that Plaintiff would not be offering testimony from treating physicians. Therefore, when the issue of a missing witness charge was raised by counsel before closing arguments, it was too late (see Rivera v Port Authority of NY & N.J., 127 A.D.3d 415 [1st Dept 2015]).
Despite the lateness of Defendant Toure's request for a missing witness charge before closing arguments in the damages phase, this Court did deny it on the ground that it would be cumulative (and this Court also was not persuaded that the treating physicians who did not testify were under the "control" of Plaintiff). Dr. Kaplan testified extensively as an expert orthopedic surgeon. He explained that Plaintiff sustained multiple fractures and used diagnostic imaging results. He testified based on a review of medical records, primarily operative reports and x-rays. He himself had examined Plaintiff. Plaintiff's medical records were in evidence. In fact, Dr. John Denton, Defendant Toure's medical expert who had examined Plaintiff, confirmed various aspects of Dr. Kaplan's testimony, such as that Plaintiff had reduced ranges of motion as a result of fractures, and that Plaintiff did have permanent conditions. In light of this, the testimony of Plaintiff's treating physicians would have been cumulative.
As for Plaintiff's aide, this too would have been cumulative. Plaintiff herself testified regarding the difficulties encountered by her in performing activities of daily living in the years following her accident.
In any event, this Court did permit Defendants' counsel to comment upon the nonappearances of the treating physicians as witnesses as case law permitted such (e.g. Padilla v City of New York, 255 A.D.2d 271 [1st Dept 1998]).
Conclusion
With a judgment having been entered by the County Clerk and this Court having issued this opinion concerning various issues encountered, this Court deems it to have fulfilled its responsibility "to inform the participants and any reviewing court of the rationale underlying the court[']s decision(s)" (Levy v Endicott, 26 Misc.3d 1203 [A], 2009 NY Slip Op 52651[U] [Sup Ct, NY County 2009], beyond the explanations provided orally on the record under the time constraints of presiding over the trial.