Feldsberg v. Nitschke

• Decision Date: 01 April 1980
• Parties: , 404 N.E.2d 1293 Liliane FELDSBERG et al., as Administrators of the Estate of Eric M. Feldsberg, Deceased, Appellants, v. James P. NITSCHKE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 751

427 N.Y.S.2d 751

49 N.Y.2d 636, 404 N.E.2d 1293

Liliane FELDSBERG et al., as Administrators of the Estate of Eric M. Feldsberg, Deceased, Appellants, v. James P. NITSCHKE, Respondent.

Court of Appeals of New York.

April 1, 1980.

Melvin Hirshowitz and Hyman Bravin, New York City, for appellants

Michael Majewski and Joseph D. Ahearn, New York City, for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

After a trial in an action for wrongful death and conscious pain and suffering, the jury returned a verdict in favor of defendant. Seeking a new trial, plaintiffs challenge certain evidentiary rulings by the trial court. The primary question is whether CPLR 3117 (subd. (a), par. 2), which permits the use of an adverse party's deposition for any purpose, overrides in all instances a trial court's discretionary power to control the litigation before it. It does not have such an effect and, therefore, the order of the Appellate Division is affirmed, 66 A.D.2d 757, 412 N.Y.S.2d 2. ¹

Decedent, Eric M. Feldsberg, died in 1972, shortly after being struck by a mobile camper operated by defendant on the ramp of Exit 18 on the Connecticut Turnpike. Defendant testified that as he approached the exit ramp, he observed Eric leaning against the guardrail on the right shoulder of the ramp. Eric left his position at the guardrail and approached the pavement. Considering him a hitchhiker, defendant steered the camper to the left and continued to decelerate. Eric then stepped onto the pavement, dodged back and forth, and darted to the island on the left side of the exit. Defendant, apparently confused by Eric's actions, turned the camper further to the left and stepped hard on the brake. These maneuvers were insufficient to avoid impact and Eric was thrown under the vehicle. Testimony from members of defendant's family who were traveling with him lent support to defendant's version of the accident.

Mrs. Petrea Anderson Harris, operating a vehicle immediately behind defendant, was a witness to the accident. Through her pretrial deposition, Mrs. Harris testified that defendant entered the deceleration lane close to the exit ramp. She observed Eric run onto the pavement, break stride, and then continue at a fast pace. She did not see Eric dodge or dart back and forth but did observe defendant decelerate on the exit ramp, veer to the left and saw his brake lights prior to impact.

Both defendant's negligence and Eric's contributory negligence were the underlying issues at trial. Plaintiffs' theory was that Eric, left off on the right shoulder of the exit ramp by another vehicle, observed the camper make a sharp turn onto the ramp and, in an attempt to avoid the oncoming camper, ran across the road to the island on the left of the ramp.

Defendant had been called as plaintiffs' witness and had been excused after redirect examination. Plaintiffs, however, requested that defendant be available to give testimony in connection with certain photographs of the accident scene. The court at that point made clear that the recall was not to be for the purpose of repeating conflicts concerning the distances involved or to repeat areas of testimony already covered. Counsel did not object and represented that he did not intend to conduct such an examination, indicating that the only purpose for recalling defendant was for his testimony concerning the photographs. However, when defendant was recalled, counsel for plaintiffs began the examination by asking defendant about his observations of decedent's conduct. The court sustained a defense objection, reminding counsel of the previous ruling that the recall was to be for the limited purpose of marking the photographs. Counsel acknowledged his understanding of the initial ruling but asserted that he had three matters which came up during the intervening period. After the court refused to permit the additional inquiry, counsel further requested a ruling concerning the use of defendant's deposition for one question claimed to be inconsistent, asserting that the deposition could be read without defendant being present on the stand. Plaintiffs' counsel then asked if he could use the deposition with defendant on the stand. In light of the reservation concerning the examination of defendant and considering the use of the deposition to be a further examination of defendant, the court ruled that counsel could not make further use of the deposition.

Plaintiffs urge that the refusal to allow further use of the deposition imposed an unwarranted restriction on the presentation of their case and was contrary to the express terms of CPLR 3117 (subd. (a), par. 2). That rule provides, "the deposition of a party * * * may be used for any purpose by any adversely interested party". This provision, adapted from former subdivision (d) of rule 26, now subdivision (a) of rule 32 of the Federal Rules of Civil Procedure (see First Preliminary Report of the Advisory Committee on Practice and Procedure, N.Y.Legis.Doc., 1957, No. 6(b), p. 146), was intended "to authorize use of a party's deposition unlimitedly against the deponent" (Sixth Report of the Advisory Committee on Practice and Procedure, N.Y.Legis.Doc., 1962, No. 8, p. 318). The section permits use of the deposition as evidence in chief without making the party-deponent the witness of the party introducing the deposition or binding the offerer to the deponent's version of events (see CPLR 3117, subd. (d); Spampinato v. A. B. C. Cons. Corp., 35 N.Y.2d 283, 360 N.Y.S.2d 878, 319 N.E.2d 196). Plaintiffs would have this court read CPLR 3117 (subd. (a), par. 2), not as merely establishing the admissibility of the contents of a deposition as evidence of the facts asserted without a showing that the deponent is unavailable (see Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3117:3, p. 491), but also as establishing an absolute and unqualified right to use the deposition at any time during the course of trial. We decline to adopt plaintiffs' interpretation, however, for to do so would be to do violence to certain well-settled principles of trial practice.

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. Indeed, the power to permit deviation is an integral part of the Trial Judge's function. The court often has before it complex litigation and is duty bound to assure fairness and avoid unnecessarily protracted or confusing presentation of evidence. This power to control the case necessarily is of a discretionary nature, and its exercise is not reviewable save for a clear abuse of discretion (see Richardson, Evidence (10th ed. Prince), § 459, pp. 449-450).

Thus, the order of introducing evidence and the time when it may be introduced are matters generally resting in the sound discretion of the trial court (Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. (39 U.S.) 448, 463, 10 L.Ed. 535; 6 Wigmore, Evidence (3d ed.), § 1867, p. 498). This "cardinal doctrine" (6 Wigmore, § 1867, p. 498) recognizes the court's power to permit the introduction of evidence after the close of the offerer's case (People v. Koerner, 154 N.Y. 355, 48 N.E. 730; Wright v. Reusens, 133 N.Y. 298, 307, 31 N.E. 215) or prohibit the same (Agate v. Morrison, 84 N.Y. 672). Similarly within the trial court's control is the method and duration of cross-examination to determine a witness' credibility or accuracy (see Langley v. Wadsworth, 99 N.Y. 61, 63, 1 N.E. 106). In addition, while the court may not deprive a party of the right to inquire into matters "directly relevant to the principal issues of the case against him" (People v. Ramistella, 306 N.Y. 379, 384, 118 N.E.2d 566), it may, in the proper exercise of discretion, restrict inquiry into collateral matters (see People v. Braun, 158 N.Y. 558, 567-569, 53 N.E. 529) or prohibit unnecessarily repetitive examination (Matter of Friedel v. Board of Regents, 296 N.Y. 347, 351, 73 N.E.2d 545).

Nor can it be doubted that recall of a witness for redirect examination is subject to the discretion of the court (see 6 Wigmore, Evidence (3d ed.), § 1898, pp. 570-572). Generally, sound trial practice demands that every witness be questioned in the first instance on all relevant matters of which he has knowledge and be excused at the completion of this testimony. In this manner, the litigation is contained within reasonable limits, the adversary is aware of the evidence he will have to meet and the jury is not unnecessarily confused. Recall at a later point in the trial not only may inject untoward administrative burdens into the litigation by reopening the whole range of prior testimony, but may also unfairly disadvantage the adversary in his ability to meet the proof or unnecessarily divert the jury's attention away from the material issues of the case. In certain situations, however, the trial court may find it necessary to depart from this general rule and may do so in its discretion (see id., pp. 570, 572, quoting People v. Mather, 4 Wend., 229, 249).

Given the considerable body of law recognizing the trial court's discretionary power to control the case before it, we cannot accept plaintiffs' contention that CPLR 3117 (subd. (a), par. 2) establishes an absolute right on the part of the offerer to use a deposition at any time during the presentation of the case, subject only to the exclusion of repetitious matter. ² A deposition contains no more than testimonial evidence of the party-deponent and is merely the vehicle by which this evidence comes before the trier of fact. CPLR 3117 confers upon the deposition no special qualities rendering its use immune to ordinary rules of trial practice. Thus, the discretionary power to control the use of...