Cheathem v. Ostrow

• Decision Date: 21 November 2012
• Citation: 954 N.Y.S.2d 598,100 A.D.3d 819,2012 N.Y. Slip Op. 07949
• Parties: Felicia CHEATHEM, respondent, v. Stephen OSTROW, et al., appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 819

954 N.Y.S.2d 598

2012 N.Y. Slip Op. 07949

Felicia CHEATHEM, respondent,

v.Stephen OSTROW, et al., appellants.

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

Nov. 21, 2012.

Greher Law Offices, P.C., New Windsor, N.Y. (Warren Greher and John McHugh of counsel), for appellants.

Bergstein & Ullrich, LLP, Chester, N.Y. (Stephen Bergstein of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for sexual harassment, the defendants appeal from a judgment of the Supreme Court, Orange County (McGuirk, J.), dated March 27, 2009, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $25,000.

ORDERED that the judgment is affirmed, with costs.

CPLR 3117 permits the use of an adverse party's deposition for any purpose ( seeCPLR 3117; Feldsberg v. Nitschke, 49 N.Y.2d 636, 640, 427 N.Y.S.2d 751, 404 N.E.2d 1293). Additionally, CPLR 4515 permits the introduction of a prior inconsistent statement sworn or subscribed by the witness for purposes of impeachment ( seeCPLR 4515; Feldsberg v. Nitschke, 49 N.Y.2d at 644 n. 2, 427 N.Y.S.2d 751, 404 N.E.2d 1293). However, “[a] trial court is not without power to ensure the orderly and fair administration of justice merely because a particular item of evidence is technically admissible. Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case” ( Feldsberg v. Nitschke, 49 N.Y.2d at 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293). “[T]rial courts retain their discretionary power to control the trial and to ‘avoid unnecessarily protracted or confusing presentation of evidence’ ” ( Dank v. Sears Holding Mgt. Corp., 93 A.D.3d 627, 628, 940 N.Y.S.2d 648, quoting Feldsberg v. Nitschke, 49 N.Y.2d at 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293).

Here, the Supreme Court providently exercised its discretion in precluding defense counsel from using the plaintiff's deposition testimony to impeach a portion of her trial testimony. At trial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to play the game “Simon Says,” and that during this game, he instructed her to hop on one foot and expose her bare chest to him. Although the plaintiff did not testify about this event during her deposition, the plaintiff was not asked in her...