Feldsberg v. Nitschke

• Decision Date: 28 December 1978
• Citation: 66 A.D.2d 757,412 N.Y.S.2d 2
• Parties: Liliane FELDSBERG et al., as Administrators, etc. of Eric M. Feldsberg et al., Plaintiffs-Appellants, v. James P. NITSCHKE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 2

412 N.Y.S.2d 2

66 A.D.2d 757

Liliane FELDSBERG et al., as Administrators, etc. of Eric M Feldsberg et al., Plaintiffs-Appellants, v. James P. NITSCHKE, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

Dec. 28, 1978.

M. Hirshowitz, New York City, for plaintiffs-appellants.

J. D. Ahearn, New York City, for defendant-respondent.

Before KUPFERMAN, J. P., and EVANS, MARKEWICH, LYNCH and SANDLER, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, entered March 17, 1977, denying plaintiff damages for wrongful death and conscious pain and suffering is affirmed without costs and without disbursements.

During the course of this proceeding in trial court, plaintiff called the defendant as his witness and examined him exhaustively, in the process utilizing defendant's pretrial deposition. Plaintiff completed his examination and the witness was excused. Later, plaintiff recalled the witness for the purpose of placing identifying marks on some photographs; then stated his intention to read portions of the defendant's deposition. The trial court ruled that inasmuch as plaintiff had examined the witness at length on his deposition he could not now again continue the examination.

What is at issue here is the question of the discretionary right of the trial judge to limit examination, and the trial court is vested with a wide discretion to regulate the order, manner and scope of examination. At the time, the trial judge pointed out his reasons for not permitting this type of examination as being violative of the fundamental rule of fairness with regard to the procedure for examining witnesses. In speaking of this discretion, the Court in People v. Sorge, 301 N.Y. 198, 202, 93 N.E.2d 637, said ". . . the wide latitude and the broad discretion that must be vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of 'plain abuse and injustice' (La Beau v. People, Supra, 34 N.Y. 223, 230), from substituting its judgment for his and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal."

Accordingly, the judgment of the trial court should be affirmed.

All concur except SANDLER, J., who concurs in the result only, and LYNCH, J., who dissents in the following memorandum:

I dissent and would reverse and remand for a new trial on the ground that it was prejudicial error for the trial court to have denied plaintiffs' counsel the right to read portions of defendant's pretrial deposition to the jury.

Plaintiffs' decedent was a pedestrian on or near an exit ramp on the Connecticut Turnpike when he was struck by a vehicle driven by defendant. The jury resolved this action for wrongful death and conscious pain and suffering in defendant's favor.

On the trial defendant was called as plaintiffs' first witness and during his direct and redirect examination plaintiffs' counsel used some...