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Nelson v. City of New York

Supreme Court, Queens County

April 3, 2018

Grace Nelson, as Attorney in fact for CARMELA CHIRDO, Plaintiff,
v.
City of New York AND LINDENWOOD OWNERS CORP., Defendants.

          SALVATORE J. MODICA, J.

         This personal injury action was administratively referred to this Court for trial. Two motions, relating to this case, were also referred to this Court for decision. The plaintiff, an elderly woman, allegedly fell on a sidewalk abutting property belonging to defendant, Lindenwood Owners, Inc., sustaining injuries. See Administrative Law § 7-210(a). Defendant, Lindenwood Owners, moves, under Motion Sequence Number 6, for an order striking the plaintiff's complaint for violating several orders relating to discovery; it also seeks an order vacating the plaintiff's Note of Issue and Certificate of Readiness for Trial. In the alternative, the defendant seeks an order compelling plaintiff to provide HIPPA authorizations for the service of trial subpoenas.

         Plaintiff's motion under Sequence Number 7 is for the issuance of an order to videotape the plaintiff's testimony and present it in that form to the jury. The attorneys appeared before this Court on March 29, 2018 for oral argument on the motions. Both motions are granted, in part, and denied, in part, in accordance with this decision. In addition, during oral argument on March 29th, it was represented to this Court, on the record, that "The City of New York, " is no longer a litigant in this action. Given that representation, the caption is, therefore, amended to delete "The City of New York" as a defendant in this action. The following opinion constitutes the decision and order of this Court.

         The plaintiff's motion under sequence number 7 is granted solely to the extent that the plaintiff, Carmela Chirdo, who is in her nineties and infirm, and who previously was granted a trial preference pursuant to CPLR 3403(a)(4), will, as explained in this opinion, be permitted to testify by videotelephony, a form of closed circuit television. The remainder of the plaintiff's motion is denied.

         To begin, the Confrontation Clause of the United States Constitution does not apply to civil cases. Under Article I, § 6 of the New York State Constitution, however, civil litigants are, if they choose to be present for their trial, guaranteed the right to appear personally at trial and confront the witnesses against them. Nevertheless, "the right to face-to-face confrontation is not absolute, and may give way to important public policy exceptions provided there are other assurances of the testimony's reliability." See Matter of Doe, 13 Misc.3d 497, 501 (S.Ct. 2006); see also Maryland v Craig, 497 U.S. 836 (1990). In that regard, it has been held that "[w]hile every litigant has a fundamental right, guaranteed by the Due Process Clauses of both the Federal and State Constitutions, to be present at every stage of the trial (Matter of Cecelia R., 36 N.Y.2d 317; Matter of Ana Maria Q., 52 A.D.2d 607), this right is not absolute in civil actions." Matter of Donna K., 132 A.D.2d 1004, 1005 (4th Dept. 1987); see also Matter of Raymond Dean L., 109 A.D.2d 87, 88 (4th Dept. 1985). In point of fact, the above-cited cases arguably stand for the proposition that the right of confrontation under the New York State Constitution does not have the same force and effect in civil cases as it does in criminal and quasi-criminal proceedings. Id; cf. Matter of Jung, 11 N.Y.3d 365, 372-73 (2008).

         In this case, it is alleged that the plaintiff is advanced in years, infirm, and, lives in a nursing home in northern New Jersey. The moving papers, thus, allege that she is physically incapable of traveling to court. Given these allegations and the medical evidence and legal documents in support thereof, the Court is reasonably convinced that she is too infirm to travel to Court. In that regard, there appears to be no dispute between the parties as to the plaintiff's health and infirmity. As a result, her deposition could be admitted into evidence pursuant to CPLR 3117(3)(iii). The plaintiff, however, wishes to testify before a jury in order to have her proverbial "day in court." To accomplish this, the plaintiff requests an order that would allow her to give videotaped testimony before the trial commences. The testimony would presumably be given from the nursing home in which she currently resides. Ultimately, the plaintiff moves for an order to have her entire videotaped testimony presented to the jury. Defense counsel, who, presumably, is unwilling to travel to plaintiff's current residence in northern New Jersey in order to cross-examine her, objects to this procedure. Significantly, the plaintiff's request is not one that will generate contemporaneous testimony to the jury. Frankly, permitting her to provide her testimony through videotape would, in effect, result in the duplication of her deposition. The plaintiff has already been deposed and that testimony can, under the circumstances of this case, and as noted above, be admitted under CPLR 3117(3)(iii). Admittedly, her demeanor was not captured by that deposition. In the end, however, it is much more preferable, insofar as the defense is concerned, that she give live testimony. This is especially so inasmuch as the videotape procedure is unduly burdensome on defense counsel. Finally, the Court notes that the only objection voiced by defense counsel during the on-the-record-appearance of March 29, 2018 was as to the videotaping of the plaintiff's testimony; defense counsel did not object to the alternative method proposed by this Court in which the plaintiff could testify. At that appearance, the Court ruled that it would permit the plaintiff to testify in some form of videotelephony, such as Skype. This method of testimony would permit the plaintiff to give live testimony to the jury. More important, the defense would be able to cross-examine her as if she were actually present in the courtroom.

         Despite the lack of an objection to allowing the plaintiff to give contemporaneous testimony by audio-video technology, the Court will address the merits of the plaintiff's motion. As noted above, the right of confrontation under both the Federal and State Constitution is not absolute. In certain circumstances, both constitutional provisions may give way to important public policy considerations, so long as there are other assurances of the reliability of a witness's testimony's. See People v Cintron, 75 N.Y.2d 249 (1990); see also Matter of Doe, supra 13 Misc.3d at 502. In sum, there is no rule that absolutely forbids the plaintiff from testifying through the use of a closed circuit television to a jury. It has been utilized in both Family Court proceedings and criminal prosecutions involving children who have been sexually abused. See Family Ct Act § 343.1(4)]; see also CPL Article 65; People v Cintron, supra, 75 N.Y.2d at 249. The Court finds that, under the circumstances of this case, the plaintiff should be permitted to testify to the jury through the use of computerized audio-video technology.

         In reaching this ruling, the Court notes that there have been great advancements in audio-video technology since the days of closed circuit television. In truth, the current technology has made closed-circuit television, which involved the use of expensive equipment, quite obsolete. Computer programs such as Skype and Facetime are two examples of videotelephony software that allow individuals, using the internet, to see and hear one another through devices such as computers, cellphones, and Ipads. In short, it is an inexpensive means in which people can see and talk to one another in real time from remote locations. From a legal standpoint, it makes it possible for witnesses and litigants to give testimony that will be simultaneously transmitted into a courtroom, inexpensively and from great distances, thus allowing a jury to see and hear the individuals who testify. In fact, given that it allows a litigant or witness to provide a jury with a form of live testimony, it is, in some ways, much more reliable than admitting a deposition into evidence, even a videotaped one. This is especially so in this age of high definition television and computer screens. In fact, as noted by the Second Circuit in United States v Gigante, "contemporaneous testimony via closed circuit televising affords greater protection of [a defendant's] confrontation rights than would a deposition." United States v Gigante, 166 F.3d 75, 81 (2nd Cir. 1999); citing United States v Gigante, 971 F.Supp. 755, at 758-59 (EDNY 1997). Such contemporaneous testimony gives the jury the opportunity to observe the demeanor of a witness, a significant factor in evaluating the truthfulness and accuracy of a witness's testimony. Given that the plaintiff is a material witness and is physically unavailable to testify in Queens County, Supreme Court, the Court finds that exceptional circumstances exist to permit her to testify by Skype, Facetime, or some other accurate and reliable computer software program. See United States v Gigante, supra 166 F.3d at 81. Taking into account both the plaintiff's right to be present in this case and the defendant's right to confrontation, given that the plaintiff has material testimony to give, but is too old and ill to attend this trial in person, this Court finds that, on balance, her interests outweigh the defendant's. For these reasons, she should be permitted to testify pursuant to the procedure set forth in this opinion.

         The Court finds that this ruling furthers the interest of justice. First, it is imperative for the jury to see and hear from the plaintiff. That she is too frail to do so does not entail that she should be precluded from testifying, especially when technology can provide her with the means of doing so from the safe and comfortable surroundings of her residence.By the same token, testifying by means of audio-video technology would allow defense counsel to explore his theory, for which there is evidentiary support, that plaintiff suffered from a heart condition, which allegedly predated her fall on December 13, 2011, and which may have caused her to become dizzy and fall on the date in question. Defense counsel would further be able to pursue his argument that plaintiff's heart condition is what caused her to fall, not an alleged defect on the sidewalk abutting the defendant's property. At the deposition held in this case, defense counsel was unable to obtain medical records or information from plaintiff as to her heart condition prior to December 13th. As outlined below, the Court will give the defense the opportunity to get this medical information. If the medical records support defense counsel's argument, they will be integral to the defense in this case. Permitting the plaintiff to testify by videotelephony will not only be beneficial to the plaintiff, but it will also provide the defense an opportunity to question her and explore what appears to be a meritorious defense. Based on the Court's ruling on the defense motion for the plaintiff's medical records that predated the instant injury, it is imperative to both sides that the plaintiff be subjected to live questioning. The jury will then be in a better position to assess her demeanor. A stenographic deposition presented to the jury could simply never accomplish that; and a videotaped deposition simply lacks the same force and effect that is inherent in real-time testimony.

         In sum, the plaintiff is elderly and quite frail. Her contemporaneous testimony to the jury by videotelephony will be under oath and subject to cross-examination, the most reliable truth engine that exists. For all of these reasons, the Court concludes special circumstances exist warranting this testimonial procedure. The Court is reasonably assured that the plaintiff has given and will give reliable testimony. The problem is that it is possible that plaintiff was totally unaware that she was having an episode when she fell. Only medical records and expert testimony, however, can resolve that possibility. If only the plaintiff's deposition were admitted into evidence, it might not be possible for the defense theory to be adequately explored. In this case, defense counsel never got an adequate opportunity to explore the plaintiff's medical records that were generated prior to the December 11th fall. Equally important, given the defense, it is imperative that the plaintiff testify and provide the jury with a live version of what happened on the date in question and an explanation for her fall on that day. Frankly, the ruling in this case benefits both sides and promotes the ends of justice. The motion to testify by videotelephony is, accordingly, granted.

         The Court will provide the technology for the plaintiff's video-testimony in the courtroom; the plaintiff's counsel is directed to provide the necessary technology at the location where the plaintiff is residing, as well as a technician who has the ability to set up the necessary equipment and establish an audio-video connection with the Court. Counsel should contact the court's technology department and inquire what equipment and technology will be required to enable the plaintiff to give testimony by videotelephony.Finally, the Court directs the plaintiff to have a notary public available to swear in the plaintiff at her residence before the start of her testimony. The court reporter assigned to this Court will take the stenographic minutes of the plaintiff's testimony.

         With respect to the defendant's application under Motion Sequence Number 6, the Court grants the discovery motion to the extent that counsel for the plaintiff is immediately to provide medical authorizations for the release of her medical records relating to her medical condition prior to December 13, 2011. See eg. Amoroso v City of New York, 66 A.D.3d 618 (2nd Dept. 2009). When the plaintiff was examined after the accident, it was revealed that she has a heart condition known as atrial fibrillation, which is an abnormal heart rhythm characterized by rapid and irregular beating of the atria. This condition can cause heart palpitations, fainting, lightheadedness, shortness of breath, or chest pain. Given the plaintiff's age, it is reasonable to conclude that she may have had this condition prior to the time she fell. In short, her medical records before and after the December 11th incident are material and necessary to the defense in this case. Not only may such records establish that she was suffering from an episode at the time of the fall, they may also be material in establishing an award of damages. On March 29th, this Court directed plaintiff's counsel to provide the necessary HIPPA authorizations from plaintiff for the release of such records. Once those releases are obtained, this Court will so-order any subpoena or subpoenas for a medical provider in possession of such records. If no authorizations are provided to the defense or any one or more of the plaintiff's medical providers refuse to disclose the plaintiff's medical records to counsel, this Court will consider sanctions such as the dismissal of the action or a strong adverse inference instruction to the jury. The remainder of the defendant's motion is denied, with leave to either renew or request any sanctions or charges at the trial if the medical records are not disclosed to the defense.

         The Court makes one final observation. The Court of Appeals has stated that "the obligation and need for responsible accuracy and careful reliability should not be sacrificed to some of the whims and weaknesses of fast moving and rapidly changing technology." See eg. People v Patterson,93 N.Y.2d 80, 84 (1990). The facts of Patterson, however, involved the evidentiary foundation needed for a surveillance videotape of the crime for which the defendant was convicted. The same principle should, arguably, govern the case before this Court. But, in the Court's view, that should not end the inquiry. The computer, smartphones, and the internet are part of a technological evolution that has enhanced and facilitated the lives of human beings virtually everywhere. In that regard, the Court notes that at least two Chief Judges of the Court of Appeals have promoted the concept of "access to justice" for everyone, an extremely progressive ideal toward which our system of justice should ...


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