Hill v. Arnold

• Decision Date: 18 April 1996
• Citation: 640 N.Y.S.2d 892,226 A.D.2d 232
• Parties: Sabrina HILL, as Guardian ad Litem for Mary Glaze, Plaintiff-Respondent, v. Dr. Stewart ARNOLD, et al., Defendants, and Dr. Warren Zelman, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 892

640 N.Y.S.2d 892

226 A.D.2d 232

Sabrina HILL, as Guardian ad Litem for Mary Glaze Plaintiff-Respondent, v. Dr. Stewart ARNOLD, et al., Defendants and Dr. Warren Zelman, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

April 18, 1996.

William D. Fireman, for plaintiff-respondent.

Shawn P. Kelly, for defendant-appellant.

Before SULLIVAN, J.P., and ROSENBERGER, ROSS, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Nassau County (Robert W. Schmidt, J.), entered March 2, 1995, insofar as it granted plaintiff's motion for sanctions against defendant Dr. Zelman's attorneys, who were directed to pay $3,000 to plaintiff's attorneys and $1,500 to the attorneys for each of the co-defendants, for a total of $6,000, reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, and the motion denied. Appeal from the portion of the same order, which granted plaintiff's motion, pursuant to CPLR 4402, for a new trial, dismissed. (See, Fine v. Cummins, 260 App.Div. 569, 24 N.Y.S.2d 605.)

The trial court granted a mistrial and imposed monetary sanctions upon defendant Zelman's counsel on the ground that counsel improperly questioned nurse Walker, the first witness called by plaintiff and the assistant head nurse at Hempstead General Hospital, who had attended plaintiff in the hospital's emergency room, regarding the settlement reached between plaintiff and Hempstead General Hospital. Notwithstanding the earlier settlement, counsel for the hospital appeared at the trial for nurse Walker, who, although never named as a party defendant, had been charged, along with other hospital staff members and employees, with being an active tortfeasor. Under direct examination by plaintiff's counsel, nurse Walker was highly and selectively critical of the care and treatment rendered plaintiff by Dr. Zelman. Her testimony in no way implicated the hospital, its employees or the other defendants. When counsel for Dr. Zelman asked if the hospital had "settled for a substantial amount of money?," the court granted plaintiff's motion, joined in by counsel for the other co-defendants, for a mistrial. Sanctions, as indicated, were also imposed against Dr. Zelman's counsel. The argument by counsel for Dr. Zelman that the question was not asked to show liability on the hospital's part or in mitigation of damages in violation of CPLR 4533-b but, rather, to impeach the witness's credibility was rejected on the ground that since nurse Walker was "not a principal in the settling joint tortfeasor's organization" she could not be questioned as to the previous settlement to show bias or hostility. This was error.

Cross-examination of an adverse witness is a matter of right in every trial of a disputed issue of fact. (Friedel v. Board of Regents, 296 N.Y. 347, 352, 73 N.E.2d 545.) Evidence tending to show a witness's bias, hostility or motive to lie is not collateral but directly probative of credibility. (Matter of Edward F., 154 A.D.2d 464, 465, 546 N.Y.S.2d 630.) A witness who participated in the incident at issue, having a motive to shield herself, as well as her employer, from blame, is an interested witness notwithstanding the fact she is not a party. (Coleman v. New York City Transit Auth., 37 N.Y.2d 137, 142, 371 N.Y.S.2d 663, 332 N.E.2d 850.) It is not necessary that a witness have a financial stake in the litigation to be interested. Although not a party, nurse Walker had been charged as an actual tortfeasor in the treatment of plaintiff. In an action for personal injuries a person, although not a party, directly charged with having caused the same is so interested that his testimony may be rejected even though it is not otherwise impeached or contradicted. (Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744.) It has long been recognized that a prior settlement might well have an impact upon the credibility of a witness called to testify on behalf of a former adverse party. (Keet v. Murrin, 260 N.Y. 586, 184 N.E. 104.) Thus, an adverse witness may be shown to have settled a claim against the party calling him to show bias. (Pretto v. Leiwant, 80 A.D.2d 579, 435 N.Y.S.2d 778.) Since nurse Walker clearly had a motive to exonerate herself and her employer from wrongdoing in their treatment of plaintiff, it was error to exclude counsel's cross-examination question as to the hospital's prior settlement. If the court was concerned about the transcendent effect of such evidence, a limiting instruction could have been given. Thus, there was no basis for a mistrial or sanctions, the imposition of which, in any event, was in the circumstances presented, a clear abuse of discretion.

All concur except TOM, J. who dissents in a memorandum as follows.

TOM, Justice, dissenting.

I respectfully dissent and vote to affirm the IAS Court.

I would first note that...