Tuesday, August 30, 2016

Dismissal based on the belated disclosure of a videotape.

Practice point:  The Appellate Division reversed the Supreme Court and reinstated the complaint in this action where plaintiff allegedly tripped and fell on wires laid across the floor at a banquet hall leased and operated by defendant.

At her deposition, plaintiff testified that a video was shot of the party. During discovery, when defendants requested production of any photographs taken at the time of the alleged accident, plaintiff responded that she did not have any. At trial, during cross-examination, plaintiff testified that, on the previous day, she had searched her home and found a video of the party. Plaintiff gave the video to her attorney around noon that day but the attorney did not notify the court and defendants until nearly 4:00 p.m., during plaintiff's cross-examination.

The Appellate Division found that, under these circumstances, the court abused its discretion in dismissing the complaint due to plaintiff's belated disclosure of the video. While CPLR 3101(i) requires, upon demand, disclosure of "any films, photographs, video tapes or audio tapes," there is insufficient evidence of willful or contumacious conduct on plaintiff's part, or of prejudice to defendant, so as to warrant the dismissal of the complaint in the midst of the jury trial.

There was no court order directing plaintiff to produce the video, and defendant's discovery demands only requested that plaintiff produce photographs.  Plaintiff did not seek to introduce the edited video, which did not show her fall, at trial. In fact, she was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of defendant's principals standing in the vicinity.

Student note:  Prior to trial, the parties entered into a high-low agreement as to damages. As the dismissal was reversed, the agreement will be enforced at trial.

Case:  Cox v. Grand Slam Banquet Hall, NY Slip Op 05897 (1st Dep't August 25, 2016)

Here is the decision.

Tomorrow's issue:  A fall from an elevated display platform.