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Vrlaku v. Plaza Construction Corp.

Supreme Court, Richmond County

August 22, 2017

Liman Vrlaku, Plaintiff
v.
Plaza Construction Corporation, Defendants.

          Attorney for Plaintiff James Schermerhorn, Esq Bamundo, Zwal & Schermeerhorn, LLP

          Attorney for Defendant John T. Rafter Esq, Rafter and Associates

          Philip S. Straniere, Acting Justice of the Supreme Court

         Plaintiff, Liman Vrlaku (Vrlaku), commenced this civil action in Supreme Court, Richmond County, against the defendant, Plaza Construction Corporation (Plaza), alleging that owing to the defendant's failure to comply with New York's Labor Law, plaintiff suffered personal injuries. A nonjury trial commenced on July 17, 2017and continued July 18, 19, 20 and 21, 2017. Both sides are represented by counsel.

         Plaintiff, alleges that on April 30, 2012, he and a coworker, Colin Colbourne, were in a scissor lift about thirty feet above the ground installing sheet rock in the gymnasium ceiling of Maspeth High School when the lift suddenly moved up causing him to be injured when his arm was caught between the sheetrock and the railing of the scissor lift. The scissor lift was owned by an independent entity and leased by plaintiff's employer, R & J Construction Corp. (R & J). Neither the owner of the scissor lift, nor R & J are parties to this action.

         Defendant sought to introduce an audio-digital recording of Colin Colbourne, made May 20, 2015 by an employee of G4S Investigators who were hired by defendant's insurance carrier, Liberty Mutual Insurance, to investigate the accident. The digital recording was made on a memory card, and stored on G4S's computer. A copy of the recording was given to defense counsel and reduced to written questions by someone in defense counsel's office for use in cross-examination of Colbourne. Plaintiff asserted that neither the recording nor any written transcript were exchanged. Defendant contends that both the recoding and the transcript were work product prepared for litigation and not discoverable.

         The investigator who made the recording, Thomas Maloney, was called to testify as a defense witness. He was asked to authenticate the recording and its contents. The recording was played in court and Maloney was cross-examined by plaintiff. Plaintiff objected to the disc prepared by the investigator being introduced into evidence. The court reserved decision on the admissibility of the recording. Maloney explained that he recorded the conversation with a digital recorder and stored it on a memory card. He then delivered the memory card to G4S's office where the contents of the memory card were stored on the company's server.

         Remarkably, neither side had taken a deposition of Colbourne before the trial even though it was obvious that Colbourne, as the only other possible eye-witness to the event, would have to testify. Counsel, both experienced trial lawyers, were carrying New York's outdated "trial by ambush" to a new category, "trial by clairvoyance."

         In order to level the playing field, the court ordered the deposition of Colbourne for the morning of July 19, 2017.

         The issue of admissibility of the digital recording is governed by several sections of the Civil Practice Law & Rules (CPLR).

         CPLR §4518 Business records provides:

(a) Generally. An electronic record, as defined in section three hundred two of the state technology law, used or stored as such a memorandum or record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record. The court may consider the method or manner in which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record. All other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility.

         CPLR §4539 Reproductions of original

(b) A reproduction created by any process which stores an image of any writing, entry, print or representation and which does not permit additions, deletions, or changes without leaving a record of such additions, deletions or changes, when authenticated by competent testimony or affidavit which shall include the manner or method by which tampering or ...

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