Opinion
Index No. 300296/19
04-28-2022
Pablo SANTIAGO, Plaintiff, v. RJ LEASE MANAGEMENT CORP. and Juan Escano, Defendants. Estate of Carmen Santiago by its Administrator Reinaldo Santiago, Plaintiff, v. Pablo Santiago, RJ Lease Management Corp. and Juan Escano, Defendants.
This motion involves two actions arising out of the same 2014 motor vehicle accident, which previously have been joined for trial. Pablo Santiago, as defendant in the second action (index no. 300285/19, the "Estate case") moves for an order in limine precluding co-defendant Juan Escano from testifying at trial. Santiago also moves for summary judgment as to Escano's liability.
Motion to Preclude Testimony
In 2015, Escano was deposed in the first action (index no. 300296/19, the "Santiago case"). Neither counsel for the Estate of then-living Carmen Santiago, nor Pablo Santiago's defense counsel in the Estate case, were present for that deposition, as they are not involved in the Santiago case.
The Estate filed a note of issue in the Estate case in September 2016, which defendant Santiago moved to strike on the ground he had not had the opportunity to depose Escano. By decision and order of Supreme Court (Laura Douglas, J.), dated November 3, 2016, the Court held that Escano's counsel was to produce a copy of Escano's deposition transcript within fifteen (15) days; Santiago's counsel was to advise within thirty (30) days of receipt of the transcript whether a subsequent deposition of Escano would be necessary; and, if so, that any subsequent deposition of Escano would take place on January 18, 2017. After review of the deposition transcript, Santiago requested a subsequent deposition of Escano.
In December 2016, after the issuance of the foregoing order, but prior to the January 18, 2017 date of Escano's deposition, Supreme Court so-ordered a stipulation of all parties agreeing to consolidate both matters for trial.
After Escano failed to appear for his Court-ordered deposition on January 18, 2017, Supreme Court issued a conditional preclusion order, dated October 3, 2017, precluding Escano from testifying at trial "unless he appears for a deposition in this action within 60 days of this date." Escano has never appeared for the subsequent deposition.
Since these events, the cases have been transferred to Civil Court for trial, pursuant to CPLR 325(D).
In support of the motion in limine , Santiago, joined by the Estate, argues that the preclusion order became absolute when Escano did not appear for a deposition within 60 days of that order, and that Escano should be entirely precluded from testifying at the joint trial. Santiago and the Estate contend that to allow Escano to testify in the Santiago case, in which Escano was deposed, while precluding him from testifying in the Estate case with a limiting instruction to the jury not to consider the testimony solely in that case, would result in severe prejudice to them for two primary reasons. First, they never got to depose Escano and the existing deposition did not address all the issues they hoped to cover with him. Second, they contend they would not be permitted to cross-examine Escano in the Estate case, because Escano is precluded from testifying in that matter. Santiago suggests as an alternative outcome the severance of the two matters for trial, but acknowledges that severance could result in inconsistent verdicts and a less efficient use of Court resources.
Defendants Escano and RJ Lease Management Corp. oppose the preclusion motion, arguing that any prejudice to Santiago and the Estate resulting from Escano's testimony at the joint trial would be minimal, because they have received Escano's deposition transcript. Despite the Estate's support for full preclusion of Escano's testimony, Escano and RJ Lease maintain the Estate would be prejudiced thereby.
Where a party fails or refuses to obey an order for disclosure, courts may sanction the non-compliant party, including by precluding them from offering testimony at trial (see Mehta v. Chugh , 99 AD3d 439 [1st Dept 2012] [affirming preclusion of testimony at trial where plaintiff failed to appear for deposition]; CPLR 3126 ). Because Escano failed to comply with the condition of Supreme Court's preclusion order, which directed him to appear for a deposition within 60 days of the order, the preclusion took effect and is enforceable against him in the Estate case (see , e.g. , Fletcher v. Dakota , 127 AD3d 626, 626-27 [1st Dept 2015], lv denied 29 NY3d 904 [2017] [affirming sanction pursuant to conditional preclusion order]). The question, then, is how to proceed in light of the joinder for trial of these two matters.
There is a general preference to join cases involving common questions of law and fact for trial in the interests of judicial economy and consistent verdicts (see generally Gage v. Travel Time & Tide, 161 AD2d 276, 276-77 [1st Dept 1990] ; CPLR 602 ). The party opposing joint trial must show that its substantial right(s) will be prejudiced by having the cases tried together ( Lema v. 1148 Corp. , 176 AD3d 653, 654 [1st Dept 2019] ). Here, the two cases were joined for trial on consent of all parties at a time when the alleged prejudice had not yet arisen; that is, the date of Escano's court-ordered deposition had not yet passed and his testimony in the Estate case was not yet precluded. Therefore, the parties did not have a meaningful opportunity to consider the issue presently before the Court when they agreed to join these matters for trial. Moreover, Santiago argues that when Escano failed to appear for his court-ordered deposition, he was on notice that any preclusion could impact both cases then-joined for trial.
The Court rejects the request by Santiago and the Estate to entirely preclude Escano from testifying at a joint trial. Such sanction would be inappropriately broad and heavy-handed, since Escano was deposed in the Santiago case and has not been precluded from testifying in that matter. The Court also declines to provide a limiting instruction to the jury. While there is a presumption that jurors understand limiting or curative instructions to disregard testimony (see Rivera v. New York City Tr. Auth. , 92 AD3d 516, 517 [1st Dept 2012] ; Martelly v. New York City Health & Hosps. Corp. , 276 AD2d 373 [1st Dept 2000] ), the instruction here would go far beyond directing a jury to disregard a stray comment, and would permit them to consider Escano's testimony as to one case, while directing them in the same trial to entirely disregard the same testimony with regard to the other case. Such instruction would create a substantial risk of confusing the trier of fact. Moreover, because Santiago and the Estate have not had the opportunity to depose Escano, and would not have the opportunity to cross-examine him in the Estate case, their substantial rights would be prejudiced by permitting Escano to testify in a joint trial with a limiting jury instruction. Accordingly, the Court finds in an exercise of its discretion that severance for trial is the appropriate remedy ( Toscani v. One Bryant Park, LLC , 139 AD3d 644 [1st Dept 2016] ; Radiology Resource Network, P.C. v. Fireman's Fund Ins. Co. , 12 AD3d 185, 185-186 [1st Dept 2004] ; Bender v. Underwood , 93 AD2d 747, 748 [1st Dept 1983] ; CPLR 603 ; cf. Ayangbesan v. Finkelstein , 193 AD3d 477 [1st Dept 2021] ), and the motion to preclude Escano's testimony is granted only to the extent of severing the cases for trial.
Summary Judgment
Santiago moves in the Estate case for summary judgment as to Escano's negligence, based on Santiago's own deposition testimony, and that of his late mother, that Escano was solely responsible for the accident. The motion is opposed as untimely by the Estate, Escano and RJ Lease, who emphasize the note of issue was filed in September 2016, and Santiago's summary judgment motion was not filed until five years later, in September 2021. The Court agrees. Because Santiago has not shown good cause for the late filing, the summary judgment motion is denied as untimely ( Brill v City of New York , 2 NY3d 648, 651-53 [2004] ; CPLR 3212[a] ). Even if the motion were timely, it would fail on the merits. Santiago did not meet his prima facie burden of establishing his entitlement to judgment as a matter of law concerning Escano's negligence. In particular, the parties dispute the cause of the accident, which presents material issues of fact necessitating a trial ( Zuckerman v City of New York , 49 NY2d 557, 562 [1980] ; CPLR 3212 ).
This constitutes the decision and order of the Court.