Caldwell v. Cablevision Sys. Corp..

• Decision Date: 31 May 2011
• Citation: 2011 N.Y. Slip Op. 04618,925 N.Y.S.2d 103,86 A.D.3d 46
• Parties: Bessie CALDWELL, et al., appellants,v.CABLEVISION SYSTEMS CORPORATION, et al., defendants,Communications Specialists, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 46

925 N.Y.S.2d 103

2011 N.Y. Slip Op. 04618

Bessie CALDWELL, et al., appellants,

v.CABLEVISION SYSTEMS CORPORATION, et al., defendants,Communications Specialists, Inc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

May 31, 2011.

Schlemmer & Maniatis, LLP (Profeta & Eisenstein, New York, N.Y. [Fred R. Profeta, Jr.], of counsel), for appellants.Wilson Elser Moskowitz Edelman & Dicker, LLP (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. [Christopher Simone and Scott Fusaro], of counsel), for respondent.PETER B. SKELOS, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and PLUMMER E. LOTT, JJ.SKELOS, J.P.

A party who calls a witness to testify to facts within his or her knowledge is required by statute to pay that witness, inter alia, $15 for every day of his or her attendance at trial ( see CPLR 8001). The question presented on this appeal is whether payment voluntarily made to a fact witness, far in excess of that mandatory witness fee, rendered the witness's testimony inadmissible or, alternatively, warranted a specific jury instruction pertaining to potential bias. We hold that, while the substantial payment made by the defendant Communications Specialists, Inc. (hereinafter the defendant), to a fact witness in this case did not require exclusion of the witness's testimony, the trial court failed to adequately charge the jury regarding the suspect credibility of factual testimony by a paid witness. Under the circumstances of this case, however, we find that the error was not prejudicial and, thus, reversal is not required.

The defendant was contracted by Cablevision Systems Corporation to install a high-speed fiber-optic cable underneath Benefield Boulevard in Peekskill. To install the cable, the defendant cut a trench, two feet deep and four to five inches wide, which extended more than 3,000 feet along Benefield Boulevard. Additionally, the defendant dug, along the trench, a series of “test pits,” approximately one-foot wide, to determine the location of existing underground utility lines. The plaintiffs' home is located on Benefield Boulevard. On October 11, 2006, at approximately 10:00 P.M., the plaintiff Bessie Caldwell (hereinafter the injured plaintiff) took her 100–pound dog for a walk during a heavy rainstorm. As was her daily custom, the injured plaintiff crossed Benefield Boulevard from her driveway and walked with the dog on the sidewalk for a short distance. As she was walking back across Benefield Boulevard toward her driveway, the injured plaintiff tripped and fell in the road, allegedly sustaining injuries. At the time of the injured plaintiff's accident, the defendant had previously dug and backfilled the trench and test pits on Benefield Boulevard, but the road had not yet been permanently repaved.

The injured plaintiff and her husband, suing derivatively, subsequently commenced this action alleging, inter alia, that the defendant failed to properly backfill the trench and test pits, and had failed to adequately cover the trench and test pits with a temporary resurfacing material. According to the plaintiffs, the defendant had thereby created a dangerous condition on Benefield Boulevard which was the cause of the accident.

The action proceeded to trial, at which the injured plaintiff testified that she fell when she tripped on a “dip” in one of the test pits along the trench. To rebut this testimony, the defendant called as a witness Dr. Barry Krosser, an orthopedic surgeon who had examined the injured plaintiff in an emergency room after the accident. Dr. Krosser was called during the liability phase of the trial solely to testify as to the description of the accident given to him by the injured plaintiff and recorded in his consultation note. Dr. Krosser's consultation note was admitted into evidence as a business record. Based upon the note, as opposed to his independent recollection, Dr. Krosser testified that when he evaluated the plaintiff, she indicated to him that she “tripped over a dog while walking ... in the rain.” Dr. Krosser further testified that he was appearing by virtue of a subpoena served upon him by defense counsel, and that the defendant was compensating him for his lost time in the sum of $10,000. The plaintiffs' counsel cross-examined Dr. Krosser regarding this payment, without limitation. Dr. Krosser indicated that, in cases in which he had previously testified as an expert, he had charged a fee, since he would otherwise have been seeing patients or performing surgery.

The plaintiffs' counsel moved to strike Dr. Krosser's testimony on the ground that it was improper for the defendant to have paid $10,000 to a fact witness. Alternatively, the plaintiffs' counsel sought a jury instruction pertaining specifically to the payment. The defendant's counsel opposed the motion, asserting that the defendant was entitled to compensate Dr. Krosser for his time away from his practice “[j]ust as if he was an expert coming in” to testify. While the trial court ruled that both counsel would be permitted to address Dr. Krosser's compensation in their summations, it otherwise denied the plaintiffs' motion.

Upon deliberation, the jury concluded that the defendant had been negligent, but that its negligence was not a substantial factor in bringing about the injured plaintiff's accident. Accordingly , upon an order denying the plaintiffs' motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence, a judgment was entered in favor of the defendant and against the plaintiffs dismissing the complaint insofar as asserted against the defendant. On appeal from the amended judgment, the plaintiffs contend that Dr. Krosser's testimony should have been stricken or, alternatively, that the jury should have been specifically instructed as to the potential bias created by the $10,000 payment made to the witness. We agree with the alternative contention.

Pursuant to statute, “[a]ny person whose attendance is compelled by a subpoena” is entitled to receive “attendance fees” in the amount of $15 for each day of attendance at trial, and travel expenses in the amount of 23 cents per mile (CPLR 8001[a] ). The plain language of the statute mandates payment of the fees set forth therein, but does not expressly prohibit voluntary payments made in excess of that fee schedule.

Nonetheless, the propriety of such payments is questionable from a public policy standpoint. “[T]he giving of testimony as to facts within one's knowledge is a matter of public duty” ( Alexander v. Watson, 128 F.2d 627, 630); it is an “inherent burden of citizenship,” which requires no compensation (8 Wigmore, Evidence § 2202, at 136; see Davis v. McDaniel, 60 Misc.2d 390, 393, 303 N.Y.S.2d 323; 7 Williston on Contracts § 15.6 [4th ed.] ). While CPLR 8001 mitigates to a certain extent the burden of this public duty, this Court long ago held that “[w]here a witness who is not interested in the result of the controversy resides within this State, and is amenable to process therein, an agreement to compensate him in an amount in excess of the legal fees for attending as a witness and testifying only as to facts within his knowledge, is contrary to public policy and void” ( Clifford v. Hughes, 139 App.Div. 730, 731, 124 N.Y.S. 478; see Matter of Schapiro, 144 App.Div. 1, 9, 128 N.Y.S. 852; Cowles v. Rochester Folding Box Co., 81 App.Div. 414, 80 N.Y.S. 811, affd. 179 N.Y. 87, 92, 71 N.E. 468; M. Farbman & Sons v. Continental Cas. Co., 62 Misc.2d 236, 238, 308 N.Y.S.2d 493, affd. 66 Misc.2d 146, 319 N.Y.S.2d 775; see also 7 Williston on Contracts § 15.6 [4th ed.]; Restatement of Contracts § 552[1] ). Such agreements are “subversive of the orderly and efficient administration of justice” ( Matter of Schapiro, 144 App.Div. at 9, 128 N.Y.S. 852), even where a witness is contracted to tell the truth, rather than to testify falsely ( see Matter of Robinson, 151 App.Div. 589, 600, 136 N.Y.S. 548, affd. 209 N.Y. 354, 103 N.E. 160). Agreements of this nature, under which witnesses might be permitted “to extort unreasonable fees for their testimony,” portend to erode equal access to justice, create an incentive, even unconscious, toward biased testimony, and threaten the integrity of the judicial system by giving the appearance that justice is a commodity ( Hamilton v. General Motors Corp., 490 F.2d 223, 228, quoting Wright v. Somers, 125 Ill.App. 256, *1 [enforcement of contracts to give factual testimony threatens “the raising up of a class of witnesses who, for a sufficient consideration, will give testimony that shall win or lose the lawsuit, toward the perversion of justice; and toward corruption in our courts”]; see Matter of Robinson, 151 App.Div. at 600, 136 N.Y.S. 548; Davis v. McDaniel, 60 Misc.2d at 397, 303 N.Y.S.2d 323).

While public policy prohibits enforcement of agreements to pay more than the statutory fee to fact witnesses for testimony ( see Matter of Robinson, 151 App.Div. at 600, 136 N.Y.S. 548; Matter of Schapiro, 144 App.Div. at 9, 128 N.Y.S. 852), when such testimony can effectively be secured through the subpoena process ( see Clifford v. Hughes, 139 App.Div. at 731, 124 N.Y.S. 478), it is generally accepted that such witnesses may properly be compensated for the loss of their time spent testifying ( see e.g. Matter of Telcar Group, Inc., 363 B.R. 345, 353–354; New York v. Solvent Chemical Co., Inc., 166 F.R.D. 284, 289; Hamilton v. General Motors Corp., 490 F.2d at 229; Matter of Robinson, 151 App.Div. at 600, 136 N.Y.S. 548; Matter of Schapiro, 144 App.Div. at 9–10, 128 N.Y.S. 852). Indeed, such compensation is expressly permitted under the New York Rules of Professional Conduct. Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.4(b) prohibits a lawyer from “offer[ing] an inducement to a witness that is prohibited by law or pay[ing], offer[ing] to pay or acquiesc[ing] in the payment of compensation to a...