Jordan v. Parrinello
| Decision Date | 21 November 1988 |
| Citation | 534 N.Y.S.2d 686,144 A.D.2d 540 |
| Parties | Albertyne JORDAN, etc., Appellant, v. Angelo PARRINELLO, et al., Respondents, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Nigro, D'Anna & Utrecht, Kew Gardens (Abraham Hecht and Warrent S. Hecht, of counsel), for appellant.
Shayne, Dachs, Stanisci & Corker, Mineola (Jonathan A. Dachs, of counsel), for respondents.
Before MOLLEN, P.J., and THOMPSON, BROWN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Lonschein, J.), dated February 29, 1988, which, upon the motion of the defendants Parrinello, made at the close of the plaintiff's case, dismissed the complaint as against them.
ORDERED that the order and judgment is affirmed, with costs.
Contrary to the plaintiff's contention, the trial court did not err in curtailing the attempts by her counsel to impeach the defendant Angelo Parrinello whom the plaintiff called as a hostile witness. It is well established that when an adverse party is called as a witness, it may be assumed that such adverse party is a hostile witness, and, in the discretion of the court, direct examination may assume the nature of cross examination by the use of leading questions. However, a party may not impeach the credibility of a witness whom he calls (see, Becker v. Koch, 104 N.Y. 394, 10 N.E. 701) unless the witness made a contradictory statement either under oath or in writing (see, CPLR 4514). On this point we note that the trial court did recognize the exception to the rule when it permitted the plaintiff's counsel to attempt to impeach his witness with the latter's deposition testimony.
We further note that the record does not support the plaintiff's allegations that the Trial Judge "coached" the defendant's counsel, or that it "rehabilitated" a witness. At no point in the trial did the Trial Judge exhibit any bias in favor of either party, and his occasional questioning of witnesses served merely to clarify and/or expedite testimony. As has frequently been held, "[a] Trial Judge may 'assume an active role in the examination of witnesses where proper or necessary * * * to facilitate or expedite the orderly progress of the trial' " (Accardi v. City of New York, 121 A.D.2d 489, 491, 503 N.Y.S.2d 818 quoting from People v. Ellis, 62 A.D.2d 469, 470, 404 N.Y.S.2d 862).
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... ... of a party's own witness provided such statement was made in a writing subscribed by the witness or was made under oath (CPLR 4515; see, Jordan v. Parrinello, 144 A.D.2d 540, 541, 534 N.Y.S.2d 686; Brown v. W.U. Tel. Co., 26 A.D.2d 316, 319, 274 N.Y.S.2d 52). Such a statement, if it ... ...
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Witness examination
...court will allow the direct examination to assume the nature of cross-examination by allowing leading questions. Jordan v. Parrinello , 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept. 1988). A witness may also be treated as hostile if he or she is in privity with an opposing party. People v. Roz......
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Witness examination
...court will allow the direct examination to assume the nature of cross-examination by allowing leading questions. Jordan v. Parrinello , 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept. 1988). A witness may also be treated as hostile if he or she is in privity with an opposing party. People v. Roz......
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Witness examination
...court will allow the direct examination to assume the nature of cross-examination by allowing leading questions. Jordan v. Parrinello , 144 A.D.2d 540, 534 N.Y.S.2d 686 (2d Dept. 1988). A witness may also be treated as hostile if he or she is in privity with an opposing party. People v. Roz......