Opinion
No. I2013011345
06-10-2022
TRA-MAC BUILDERS, INC., and ESTATE HOMES, INC., Plaintiffs, v. GLORIA BORRELLI, Defendant.
Anthony Adams, Esq. Attorneys for Plaintiff David Rothenberg, Esq. Attorney for Defendant
Unpublished Opinion
Pre-Trial Conference - June 9, 2022
Anthony Adams, Esq. Attorneys for Plaintiff
David Rothenberg, Esq. Attorney for Defendant
IN LIMINE MOTION DECISION AND ORDER
ODORISI, J.
This lawsuit arises out of a dispute over a rebuilt home, and also rental payments. Pending before this Court is Plaintiffs' in limine motion to preclude impeachment proof [NYSCEF Docket # 8 - Motion # 2]. For the reasons set forth hereinafter, the motion is GRANTED.
LAWSUIT FACTS
In the Fall of 2007, Defendant's Ogden home was destroyed by a fire. Defendant's brother - Tom Thomas ("Tom") - owns Plaintiff Tra-Mac Builders, Inc. ("Tra-Mac"), whom she hired to rebuild the home. Defendant allegedly directly paid for many of the construction supplies.
While the new house was being built, Defendant and her children lived at Tom's house - which is owned by his wife Wendy. Defendant signed a $6,500 monthly lease with Plaintiff Estate Homes, Inc., but her family did not have complete and/or exclusive use of the home.
In February of 2009, Defendant's new house was done, and Tra-Mac billed Defendant $141,642.80 - which she paid in full.
In 2013, the family became embroiled in a Surrogate's Court case concerning their parents' estate. Defendant assailed Tom's actions as the Executor. After this, Plaintiffs claimed that Defendant owed more money for both the house project and also for rent.
Plaintiffs sued Defendant for: breach of contract; account stated; quantum meruit; and, unjust enrichment.
Plaintiff withdrew the account stated claim.
LEGAL DISCUSSION
Plaintiffs seek to preclude Tom's cross-examination to bar the use of extrinsic evidence of various misdeeds, such as: a Decision and Order from retired Justice Kenneth Fisher; and, proof that he forged his parents' signatures [Docket #'s 8-10]. Defendant does not object to the motion relief precluding those documents from being admitted into evidence, but insists she can quote from Justice Fisher's Decision in her cross-examination to show that he has a pattern of creating false records for litigation purposes [Docket # 4]. Plaintiffs reply that any citations to outside materials is improper [Docket # 24].
This Court takes judicial notice that many of these same topics were precluded in the Borrelli matter which was tried last year.
Plaintiffs are entitled to their motion relief. See e.g. Huffy. Rodriguez. 88 A.D.3d 1274,1275 (4th Dept2011) (at trial, the defendant could be asked about bad acts, but the plaintiff was bound by the defendant's answer and should not have been permitted to impeach the defendant by producing extrinsic evidence). As in Huff. Defendant's expected cross-examination of Tom cannot include guotes from collateral items, or their introduction into evidence. See also Davis v. McCullouah. 37 A.D.3d 1121,1122 (4th Dept 2007) (court below did not abuse its discretion in curtailing cross-examination of a witness concerning his prior criminal convictions).
As an over-arching guidepost, "[t]he admissibility of evidence at trial lies primarily within the discretion of the trial court." Pinkv.Ricci. 74A.D.3d 1773,1774 (4th Dept 2010). See also Schozer v. William Penn Life Ins. Co. of New York. 84 N.Y.2d 639, 647 (1994). As to evidentiary rulings, a trial judge has "broad discretion to determine the materiality and relevance of proposed evidence." Gerbino v. Tinseltown USA. 13 A.D.3d 1068, 1070 (4th Dept 2004) (emphasis added). See also Hvde v. Rensselaer County. 51 N.Y.2d 927, 929 (1980). "Relevant evidence means 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'... It tends to convince that the fact sought to be established is so." People v. Davis. 43 N.Y.2d 17,27 (1977). "[A]ll relevant evidence is admissible unless its admission violates some exclusionary rule." People v. Scarola. 71 N.Y.2d 769, 777 (1988).
To get prospective evidence/questions excluded in the case at hand, Plaintiffs invoke the Molineux rule. That rule - which was created by the criminal case People v. Molineux. 168 NY 264 (1901) - applies to civil proceedings. See Matter of Brandon's Estate. 55 N.Y.2d 206, 210-211 (1982); Wolff v. Mahrer. 273 A.D.2d 812, 812 (4th Dept 2000). This rule, which normally excludes evidence of prior bad acts, is not absolute. See People v. Ventimiglia. 52 N.Y.2d 350, 359 (1981) (portions of Molineux evidence were admissible); Diel v. Bryan. 71 A.D.3d 1439, 1441 (4th Dept 2010). The first step is to consider is whether the proof falls within an exception, about which the Court of Appeals has decreed that:
Attempts to categorize situations in which evidence of prior crime is admissible have yielded Molineux's well-known listing ... of "(1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged ... but even that listing is acknowledged to be "merely illustrative"... and "not exhaustive". . .Ventimiglia. 52 N.Y.2d at 359 (internal citations omitted and emphasis added). See also People v. Calvano. 30 N.Y.2d 199, 205-206 (1972) (Molineux evidence was admissible); People v. Battles. 83 A.D.2d 164, 166 (4th Dept 1981).
If the subject bad act qualifies as an exception, the next step is to weigh the degree of probativeness against the potential for prejudice. See People v. Alvino. 71 N.Y.2d 233, 242 (1987) (Molineux evidence was admissible); People v. Woods. 21 A.D.3d 1314, 1315 (4th Dep't 2005), Iv denied. 6 N.Y.3d 761.
"The nature and extent of cross-examination is entrusted to the trial court's discretion." Swatland v. Kvle. 130 A.D.3d 1453,1454 (4th Dept 2015). See also Siemucha v. Garrison. 111 A.D.3d 1398, 1400 (4th Dept 2013). As to impeachment measures, the Court of Appeals has decreed that:
It is, of course, the general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness's credibility (see, People v Schwartzman, 24 N.Y.2d 241,244, supra). While the nature and extent of such cross-examination is discretionary with the trial court (see, Richardson, Evidence § 500 [Prince 10th ed]), the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue (see, Langley v Wadsworth, 99 NY 61, 63-64; People v Montlake, 184 A.D. 578, 583; Richardson, Evidence § 499 [Prince 10th ed]; Fisch, New York Evidence § 455 [2d ed]).Badr v. Hoaan. 75 N.Y.2d 629.634 (1990) (emphasis added). See also Matter of Brandon's Estate. 55 N.Y.2d 206, 210-211 (1982); Young v. Lacy. 120 A.D.3d 1561, 1562-1563 (4th Dept2014).
A cross-examiner is "bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility,' and extrinsic evidence cannot be used to impeach a witness's credibility after the witness has provided an answer with which the cross-examiner is unsatisfied." Dunn v. Garrett. 138 A.D.3d 1387, 1388 (4th Dept2016). See also Arlene E. v. Ralph E.. 17 A.D.3d 1104 (4th Dept 2005) (the court did not abuse its discretion in curtailing cross-examination on a collateral issue).
Here, and as credibility is going to be key to the jury's final resolution, this Court declines to limit all impeachment questions beforehand. See e.g. Rew v. Beilein. 151 A.D.3d 1735, 1737 (4th Dept 2017) (court did not abuse its discretion in permitting cross-examination regarding prior bad acts). As Plaintiffs acknowledge, questions about prior acts of untruthfulness are permissible, but without statements from, or reference to, outside documents. See e.g. Superior Sales & Salvage. Inc. v. Time Release Scis.. Inc.. 227 A.D.2d 987 (4th Dept 19960 (court properly precluded use of an affidavit to impeach a witness' credibility as it was extrinsic evidence of a collateral matter). Moreover, and under the collateral evidence rule, Tom's answers to any line of inquiry must be accepted and cannot be refuted "by calling other witnesses or by producing extrinsic evidence." Young. 120 A.D.3d at 1563 (allowing cross-examination on tax fraud). However, and should Tom not recall certain events, his memory can be attempted to be refreshed with those items, but without reading anything into the record.
In all, Plaintiffs are awarded their preclusion relief. See e.g. Hogan v. Vandewater. 172 A.D.3d 1891,1893 (4th Dept 2019) (the plaintiffs were improperly allowed to impeach the witness on a collateral matter using extrinsic evidence).
CONCLUSION
Based upon all of the foregoing, it is the Decision and Order of this Court that Plaintiffs' motion is GRANTED as detailed above.