Informal Judicial Admissions and 3101(d)

Normally this would go on the evidence blog, but I rarely post over there and am considering just killing the damn thing, so I'm posting it here.  In fact, it's been sitting around since December, waiting to be posted.


Ocampo v Pagan, 68 AD3d 1077 (App. Div., 2nd, 2009)

The court improvidently exercised its discretion in precluding the
testimony of the
defendants' expert witness in the area of radiology. "CPLR 3101 (d) (1)
(i) does not require a
party to respond to a demand for expert witness information 'at any
specific time, nor does it
mandate that a party be precluded from proffering expert testimony
merely because of
noncompliance with the statute,' unless there is evidence of intentional
or willful failure to
disclose and a showing of prejudice by the opposing party"
(Hernandez-Vega
v
Zwanger-Pesiri Radiology Group,
39 AD3d 710, 710-711 [2007], quoting
Aversa v
Taubes,
194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski
& Skate, Inc.,
42 AD3d 563, 564 [2007]).

While a trial court "has the discretion to preclude expert
testimony for the failure to
reasonably comply with the statute" (Lucian v Schwartz, 55 AD3d
687, 688 [2008]),
there was no finding [*2]here of failure to
comply, reasonably or
otherwise, with the statute. This is not a situation in which the
defendants failed to demonstrate
good cause for failing to disclose expert information regarding expert
witnesses until the eve of
trial
(cf. Martin v NYRAC, Inc., 258 AD2d 443 [1999]). Rather,
the defendants
produced an affidavit of service showing that the required notice
pursuant to CPLR 3101 (d) was
timely served (see CPLR 2103 [b] [2]). The court here merely
found that the plaintiff's
explanation raised a question of fact as to whether the plaintiff had
actually received the notice,
specifically declining to place blame on either party for the "totality
of . . .
circumstances" underlying the claim of the plaintiff's counsel that he
was unaware of the
existence of the first expert witness disclosure until right before the
start of the trial. Where there
is no evidence of intentional or willful failure to disclose, "any
potential prejudice to the
plaintiffs [may be] eliminated by an adjournment of the trial"
(Rowan
v Cross County Ski &
Skate, Inc.,
42 AD3d at 564; see Shopsin v Siben & Siben, 289
AD2d 220, 221
[2001]). By precluding the expert's testimony to avoid prejudicing the
plaintiff, instead of simply
adjourning the trial to avoid prejudice to either party, the court, in
effect, penalized the
defendants, although there was no evidence of wrongdoing on their part (see
Rowan v Cross
County Ski & Skate, Inc.,
42 AD3d at 564; Shopsin v Siben
& Siben,
289 AD2d at
221). Contrary to the plaintiff's contention, the error was not
harmless.

Moreover, the Supreme Court improvidently exercised its
discretion in limiting the scope of
the defendants' cross-examination of the plaintiff by precluding the use
of pleadings, bills of
particulars, and sworn testimony given at a hearing pursuant to General
Municipal Law §
50-h in subsequent lawsuits, and in precluding the introduction such
documents into evidence.

Statements contained in a verified complaint, or " 'made by a
party as a witness, or contained
in a deposition, a bill of particulars, or an affidavit' " constitute
informal judicial admissions
(Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996],
quoting Prince,
Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see Gomez v
City of New
York,
215 AD2d 353, 354 [1995]). As such, "they are generally
admissible pursuant to an
exception to the hearsay rule"
(Payne v New Hyde Park Dodge, 163
AD2d 285, 286
[1990]). While not conclusive, they are "evidence of the fact or facts
admitted"
(Prince,
Richardson on Evidence § 8-219, at 530 [Farrell 11th ed]; see Matter
of Union Indem.
Ins. Co. of N.Y.,
89 NY2d at 103; Gomez v City of New York, 215
AD2d at 354;
Payne v New Hyde Park Dodge, 163 AD2d at 286). Where statements
in the pleadings
or the bill of particulars, or in depositions or hearings from other
judicial proceedings are
inconsistent with the trial testimony of a witness, they are also
admissible to impeach the
credibility of that witness
(see Somir v Weiss, 271 AD2d 433
[2000]). Here,
cross-examination testimony of the plaintiff regarding allegations in
her pleadings and bill of
particulars from a subsequent action arising out of a trip and fall, and
parts of her testimony,
given at a hearing pursuant to General Municipal Law § 50-h in
connection with a
subsequent medical malpractice action, were admissible on the issue of
the truth of the facts
stated, both as prior inconsistent statements impeaching the plaintiff's
credibility, and as informal
judicial admissions.
While prior accidents or lawsuits may not be
explored where the purpose is
to "induce the inference of negligence or demonstrate that the plaintiff
is litigious and therefore
unworthy of belief" (Molinari v Conforti & Eisele, 54 AD2d
1113, 1114 [1976]), "it is
open to one charged with having caused an injury to inquire into whether
the claimant had
sustained, or had claimed to have sustained, the same injury in
circumstances unrelated to those
at bar" (Bowers v Johnson, 26 AD2d 552 [1966]).

The trial court's conduct, including, inter alia, its excessive
intervention into the trial
proceedings, warrants remittal to the Supreme Court for a new trial
before a different Justice

(see Pickering v Lehrer, McGovern, Bovis, Inc., 25 AD3d 677, 679
[2006]; see also
Schaffer v Kurpis,
177 AD2d 379 [1991]; Testa v Federated Dept.
Stores, Abraham &
Straus Div.,
118 AD2d 696, 697 [1986]).

The bold and underscore are mine.

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