Plotkin v. Rabinowitz
| Decision Date | 23 August 1967 |
| Citation | 283 N.Y.S.2d 156,54 Misc.2d 550 |
| Parties | Herman A. PLOTKIN, Plaintiff, v. Dora RABINOWITZ, Bertha Rauch and Mildred Robbins, Defendants. |
| Court | New York Supreme Court |
Arthur A. Snyder, New York City, for plaintiff.
Sidney Gilman, Brooklyn, for defendants.
This is an application for a ruling on the propriety and admissibility upon plaintiff's examination before trial of the defendants of certain tape recorded telephone conversations allegedly had between the defendants and plaintiff's mother.
Plaintiff is a subscriber to the services of the New York Telephone Company and has consented to the use of his telephone in his own one-family home by his mother, with whom he resides. Plaintiff has commenced this suit against the instant defendants, who are friends of his mother, for damages for allegedly 'conspiring to assist plaintiff's mother in provoking and instigating incidents tending to show plaintiff is mentally ill, a fit subject for commitment to a mental institution, to defame him, to harm him in his profession of teaching (he is an instructor in the Neward (sic) College of Engineering), etc. and to cause him to be, or his mother to be, deprived of possession of said house, and to disrupt his family life.'
In the belief that his own telephone was being used to the detriment of himself and his household, plaintiff arranged to tape record, on his own machine, the conversations to be held over his telephone by and between his mother and the defendants.
Upon the examination before trial of defendants Rabinowitz and Rauch plaintiff's attorney sought to utilize the said tape recordings in order to refresh the recollections of said defendants who, up to that point, denied ever having had such conversations. Counsel for defendants objected and the present impasse resulted.
While the court is aware of the 1950 decision of our Court of Appeals in People v. Appelbaum (301 N.Y. 738, 95 N.E.2d 410) affirming the reversal by the Appellate Division, Second Department, of a judgment of conviction for violation of the then existing eavesdropping statute rendered by the Kings County Court (see 301 N.Y. 738, at p. 739, 95 N.E.2d 410 at p. 411, and 277 App.Div. 43, 97 N.Y.S.2d 807), the court notes that the legislature, in 1957, enacted section 738 of the Penal Law, effective July 1, 1957. The pertinent parts of that statute read as follows:
' § 738. Eavesdropping
A person:
1. Not a sender or receiver of a telephone or telegraph communication who wilfully and by means of instrument overhears or records a telephone or telegraph communication, or who aids, authorizes, employs, procures or permits another to so do, Without the consent of either a sender or receiver thereof; or
2. Not present during a conversation or discussion who wilfully and by means of instrument overhears or records such conversation or discussion, or who aids, authorizes, employs, procures or permits another to so do, Without the consent of a party to such conversation or discussion;'. (Emphasis supplied.)
Section 738 of the Penal Law sets forth the circumstances under...
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Germain v. State
...the issue in this case. The defendant already had it; the witness was entitled, by statute, to it. 21. And see Plotkin v. Rabinowitz, 54 Misc.2d 550, 283 N.Y.S.2d 156 (1967) (taped recordings taken in violation of wiretap statute not permitted to be used to refresh recollection during ...
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Connin v. Connin
...(United States v. Jones, supra, at p. 667.) Apparently the only decision in point construing our state statute is Plotkin v. Rabinowitz, 54 Misc.2d 550, 283 N.Y.S.2d 156. There the Supreme Court, Queens County, held that the present eavesdropping statute overruled the 1950 decision of Peopl......