Alfieri v. Carmelite Nursing Home, Inc.

• Decision Date: 10 August 2010
• Parties: Albert ALFIERI, as Administrator of the Estate of Jean Alfieri, Plaintiff, v. CARMELITE NURSING HOME, INC., Defendant.
• Court: New York Civil Court

907 N.Y.S.2d 577

29 Misc.3d 509

Albert ALFIERI, as Administrator of the Estate of Jean Alfieri, Plaintiff,

v.CARMELITE NURSING HOME, INC., Defendant.

Civil Court, City of New York,

Richmond County.

Aug. 10, 2010.

Bosco, Bisignano & Moscolo, Esqs., Staten Island, for plaintiff.

Kral, Clerkin, Redmond, Ryan, Perry & Gervain, LLP, Smithtown, for defendant.

ORLANDO MARRAZZO, J.

This is an action for personal injuries. Plaintiff, Jean Alfieri, suffered injuries when she fell on August 9, 1999, while under the care and supervision of defendant and its employees as a resident of their facility. Ms. Alfieri was nearly ninety one (91) years young at the time of her fall. Her impact with the floor resulted in a fractured hip which required surgery and an extended hospital stay. Ms. Alfieri passed away on May 3, 2000, and her estate through Mr. Albert Alfieri, as Administrator of the Estate of Jean Alfieri, has continued this action against Carmelite Nursing Home. The case was originally filed in State Supreme Court in Richmond County on November 29, 1999. Pursuant to CPLR § 325(b), this case was transferred to New York City Civil Court, Richmond County, where it is currently situated.

Plaintiff moved to compel defendant to supply discovery. The parties herein have resolved by way of a so ordered two attorney stipulation all matters of discovery with the exception of discovery as it pertains to any re-education of defendant's nurse who tended to the needs of the late Ms. Alfieri. Plaintiff seeks the production of Ms. Claudia Perry, a former nurse employed by defendant, for deposition by plaintiff's counsel to discuss her involvement in the incident ("Incident") taking place on August 9, 1999. Specifically, plaintiff's counsel wishes to depose Ms. Perry about any additional training she was required by her employers to undergo, following the incident. Defense counsel objected to the motion during oral argument, based on the exclusionary doctrine of subsequent remedial action, and therefore any testimony she may give to that issue is not discoverable.

The Court of Appeals of the State of New York, has consistently held for over 120 years that any post-accident modification or repairs made in an appliance, structure, or machine which caused an accident is neither evidence nor an admission of negligence. Weiner v. Serps Auto Wreckers, 24 N.Y.2d 845, 300 N.Y.S.2d 852, 248 N.E.2d 601 (1969) (holding that evidence of repairs made by the defendant city at the site of the defect in the road allegedly causing the accident was inadmissible to demonstrate their negligence); Cahill v. Kleinberg, 233 N.Y. 255, 260, 135 N.E. 323, 324 (1922) (holding that plaintiff's counsel's process of introducing evidence of the post accident remedy via his introduction of a photo of the area, and subsequent rebuttal of it correctly showing the condition of the staircase at the time of the accident, due to the installation of the handrail, was "a persistent violation of perfectly well-understood rules towhich he should have yielded obedience", and therefore reversing the lower court's decision due to its use ofinadmissible evidence, even in light of the rule forbidding it).

Furthermore, the Court of Appeals has determined subsequent remedial measures cannot be used to demonstrate defendant's knowledge of an unsafe condition prior to the accident, thus creating a duty to take reasonable steps to warn against or prevent injury. Corcoran v. Village of Peekskill, 108 N.Y. 151, 15 N.E. 309 (1888) (holding evidence of a fence built around an opening in a street maintained by defendant city following plaintiff's injury from falling into the opening does not prove defendant had knowledge of the imperfection or unsafe condition prior to the accident).

Subsequent repairs "have no legitimate bearing upon either the defendant's negligence or knowledge of conditions its natural tendency is to prejudice and influence the minds of the jury against [the defendant]." Fraumberg v. Schmohl, 190 N.Y.S. 710, 711 (App.Div. 1st Dep't.1921) (holding that acts subsequent to the occurrence have no legal significance to the case); Di Paolo v. Somma, 111 A.D.2d 899, 900, 490 N.Y.S.2d 803, 805 (2nd Dep't.1985). Negligence can only be determined by what was known before and at the time of the accident, and can not be inferred from subsequent acts. Quinn v. City of New York, 145 App. Div. 195, 197, 129 N.Y.S. 1028, 1028 (App.Div. 1st Dep't.1911); Dougan v. Champlain Transportation Co., 56 N.Y. 1, 8 (1873).

The issue before this court is whether post-accident training of an employee is admissible to show negligence on the part of the employer. The court must presently determine if employee training is a remedial repair, and therefore inadmissible to demonstrate evidence of defendant's antecedent negligence.

To Discover or Not to Discover; That is the Question

It is well recognized that "New York has long favored open and far-reaching pretrial discovery." DiMichel v. S. Buffalo Ry. Co., 80 N.Y.2d 184, 193, 590 N.Y.S.2d 1, 604 N.E.2d 63 (1992). CPLR § 3101(a) states, "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" Northway Eng., Inc. v. Felix Indus., Inc., 77 N.Y.2d 332, 335, 567 N.Y.S.2d 634, 569 N.E.2d 437 (1991). The words "material and necessary" as used in the statute are to be interpreted liberally to require disclosure, when requested, of any facts or other information bearing on the controversy which will aid in the preparation for trial by sharpening the issues.Anonymous v. High School For Environmental Studies, 32 A.D.3d 353, 358, 820 N.Y.S.2d 573, 578 (1st Dep't.2006), quoting Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406-07, 288 N.Y.S.2d 449, 235 N.E.2d 430 (1968); Roman Catholic Church of the Good Shepherd v. Tempco Sys., 202 A.D.2d 257, 258, 608 N.Y.S.2d 647 (1st Dep't.1994).

However, evidence that may be material to the prosecution of a case has been held to be undiscoverable if it would be inadmissible at trial, even if disclosed. Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (reversing the Ninth Circuit Court of Appeals' ruling, in a per curiam opinion citing the views of Renquist, Ch. J., and O'Connor, Scalia, Kennedy, and Thomas, JJ., holding that the prosecutions' failure to disclose results of a polygraph test administered to defendant did not violate the defendant's right to due process due to the fact that the results, undisputedly, were inadmissible at trial, and therefore would not have resulted in a different outcome at trial). The United States Supreme Court narrowed theirholding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) to apply to exculpatory evidence that was required to be disclosed to defendant by the prosecution, where it was favorable to the defense, and not the other way around. Id.; See also People v. Shulman, 172 Misc.2d 535, 541, 658 N.Y.S.2d 794, 799 (County Ct.1997); People v. Parsons, 13 A.D.3d 1099, 1099 786 N.Y.S.2d 674, 676 (4th Dep't.2004), app. denied People v. Parsons, 4 N.Y.3d 801, 795 N.Y.S.2d 177, 828 N.E.2d 93 (2005).

Subsequent Remedial Conduct

After an accident has occurred, the defendant may find in its own best interest, and the interests of its customers, to take additional precautions to prevent future accidents. Rule 407 states, when, after an injury or harm allegedly caused by an event, measures are taken that if taken previously would have made the injury or harm less likely to occur, evidence of the subsequent measures are not admissible to prove negligence, culpable conduct, product defect, a defect in a product's design, or a need for a warning or instruction. Fed. R. Evid. 407.

"The Federal Rule of Evidence is essentially in accord with New York law" Bender's New York Evidence, 5.17[4][g]. In New York, the general rule is that when, after the event, measures are taken, which if taken previously, would have made the event less likely to occur, evidence of those subsequent measures is not admissible to prove negligence or culpable conduct. "The reason for the general rule is that a person may have exercised all the care the law requires, and in the light ofnew experience after an unexpected accident has occurred, and as a measure of extreme caution, may adopt additional safeguards." Id. at [4][a]. The Advisory Committee's Commentary states, however, that "[e]xclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct." Fed. R. Evid. 407.

The United States Supreme Court has held for over a century that admission of subsequent remedial measures is inappropriate due to the fact that the taking of precautions against future harms is not to be implied as an admission of guilt or responsibility, and it has no legitimate argument to prove that the defendant has been negligent before the incident occurred, and is intended to distract the jury and create a prejudice against the defendant. Columbia and Puget Sound R.R. Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405 (Wash.1892) (reversing the appellate court's affirmation of the admission of a change in the design of a trimmer, that had it been made prior to the accident would have been able to prevent plaintiff's injury because it was unable to determine just how much the evidence influenced the jury's verdict for plaintiff). The N.Y. Court of Appeals held in Engel that information relating to the issue of whether or not a discharged employee was terminated due to his negligence was inadmissible, as it would "improperly influence the minds of the jury." Engel v. United Traction Co., 203 N.Y. 321, 323, 96 N.E. 731 (1911) (holding the testimony regarding the employee motorman's discharge after an accident, and any acts by the motorman following and disassociated to the accident was immaterial).

Exceptions for Admissibility

Although not...