Tripp v. Williams

• Citation: 959 N.Y.S.2d 412,2013 N.Y. Slip Op. 23037,39 Misc.3d 318
• Parties: Stanford TRIPP, Plaintiff, v. John WILLIAMS, Earline Barrett and Michael Olaskowitz, Defendants.
• Decision Date: 07 February 2013
• Court: New York Supreme Court

39 Misc.3d 318

959 N.Y.S.2d 412

2013 N.Y. Slip Op. 23037

Stanford TRIPP, Plaintiff,

v.John WILLIAMS, Earline Barrett and Michael Olaskowitz, Defendants.

Supreme Court, Kings County, New York.

Feb. 7, 2013.

Robert C. Rosenberg, Esq. of Hill Rosenberg & Thurston, LLC, for Plaintiff.

Richard J. Fodera, Esq. of Harris, King & Fodera, for Defendant, Michael Olaskowitz.

JACK M. BATTAGLIA, J.

This personal injury action came to this Court for trial with a motion by defendant Michael Olaskowitz for an order “precluding the plaintiff and the co-defendants from making reference at trial to the prior criminal conviction [ sic ] of [Defendant], on the grounds that the prior convictions [ sic ] is unduly prejudicial, highly inflammatory and is extremely remote in time and does not involve moral turpitude” ( see order to show cause dated January 8, 2013.) Plaintiff opposed the motion, relying upon CPLR 4513 and related caselaw. The Court granted Defendant's motion on the record, promising a written decision that more fully elaborated the Court's reasons.

The Verified Complaint of plaintiff Stanford Tripp alleges that, on July 22, 2009, he sustained injury when a “masonry wall located between the backyards of 95 Sackman Street and 93A Sackman Street, Brooklyn, New York collapsed causing Plaintiff to fall from and be crushed by said wall” ( see verified complaint ¶ 25.) The property located at 95 Sackman Street is owned by defendants John Williams and Earline Barrett; the property located at 95A Sackman Street is owned by defendant Michael Olaskowitz. Plaintiff has settled with defendants Williams and Barrett.

Defendant Olaskowitz was arrested in New York County on March 22, 1986, and was convicted on January 15, 1998 after trial on multiple charges under Penal Law § 130.40, now called criminal sexual conduct in the third degree, and § 130.45, now called criminal sexual conduct in the second degree, both felonies. On June 26, 1990, the First Department reversed those convictions and ordered a new trial. ( See People v. Olaskowitz, 162 A.D.2d 322, 556 N.Y.S.2d 900 [1st Dept. 1990].)

Defendant Olaskowitz was arrested in Bronx County on June 6, 1986, and pled guilty on January 22, 1988, to a single count under Penal Law § 130.40. He was sentenced to imprisonment for one year.

On August 13, 1990, defendant Olaskowitz pled guilty to one count under Penal Law § 130.40 and two counts under Penal Law § 130.45. He was subsequently sentenced to one to three years on the § 130.40 count, and 18 months to 54 months on each of the § 130.45 counts, all to be served concurrently.

Mr. Olaskowitz testified at his examination before trial that he was incarcerated for six years, was released in 1993, and has not been convicted of a crime since. There is no evidence in the record to dispute him.

CPLR 4513 states, “A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record.” If CPLR 4513 is understood to deprive a trial court of all discretion in controlling the use of a criminal conviction for impeachment, Defendant's motion would necessarily be denied. But this Court does not understand the statute and the relatively limited caselaw on its application as having that effect.

Appellate authority weighs in favor of permitting impeachment in a civil action with the criminal convictions of a party or witness. Where the trial court permitted the impeachment, the ruling has been upheldon appeal. ( See Morgan v. Nat'l City Bank, 32 A.D.3d 1264, 1265, 822 N.Y.S.2d 201 [4th Dept. 2006];Pope v. New York City Tr. Auth., 244 A.D.2d 263, 264, 665 N.Y.S.2d 843 [1st Dept. 1997];Scotto v. Daddario, 235 A.D.2d 470, 652 N.Y.S.2d 311 [2d Dept. 1997];Murphy v. Estate of Vece, 173 A.D.2d 445, 446–47, 570 N.Y.S.2d 71 [2d Dept. 1991];Able Cycle Engines v. Allstate Ins. Co., 84 A.D.2d 140, 142–43, 445 N.Y.S.2d 469 [2d Dept. 1981];see also Vernon v. City of New York, 167 A.D.2d 252, 561 N.Y.S.2d 751 [1st Dept. 1990].) Where the trial court precluded impeachment with a criminal conviction, and there were other grounds for reversal, the preclusion contributed to reversal ( see Sansevere v. United Parcel Service, 181 A.D.2d 521, 522–23, 581 N.Y.S.2d 315 [1st Dept. 1992];Del Cerro v. City of New York, 46 A.D.2d 898, 898–99, 361 N.Y.S.2d 707 [2d Dept. 1974] ); or the preclusion was at least noted as error ( see Moore v. Leventhal, 303 N.Y. 534, 538–39, 104 N.E.2d 892 [1952];Sauer v. Diaz, 300 A.D.2d 1136, 1137, 753 N.Y.S.2d 631 [4th Dept. 2002].) In two cases, the preclusion was found to be error, but “harmless.” ( See Cruz v. Long Island R.R., 22 A.D.3d 451, 454, 803 N.Y.S.2d 91 [2d Dept. 2005];Burton v. New York City Hous. Auth., 191 A.D.2d 669, 670–71, 595 N.Y.S.2d 807 [2d Dept. 1993].)

On the other hand, in Acunto v. Conklin, 260 A.D.2d 787, 687 N.Y.S.2d 779 [3d Dept. 1999], the trial court “precluded cross-examination of plaintiff concerning a forgery conviction in an effort to impeach his credibility” ( see id. at 789, 687 N.Y.S.2d 779.) While ordering a new trial on other grounds, the Third Department noted that it could not say that the trial court “abused its discretion” in precluding the cross-examination, stating, “It is within the sound discretion of Supreme Court to control the manner in which proof is presented at trial especially with regard to matters affecting a witness's credibility and accuracy.” ( See id. at 790, 687 N.Y.S.2d 779;see also Davis v. McCullough, 37 A.D.3d 1121, 1122, 829 N.Y.S.2d 388 [4th Dept. 2007] [court did not abuse its discretion in curtailing cross-examination concerning criminal convictions].) The Second and Fourth Departments have also spoken in terms of the trial court's discretion in determining the use of criminal convictions for impeachment purposes. ( See id.;Morgan v. National City Bank, 32 A.D.3d at 1265, 822 N.Y.S.2d 201;Sauer v. Diaz, 300 A.D.2d at 1137, 753 N.Y.S.2d 631;Burton v. New York City Hous. Auth., 191 A.D.2d at 670, 595 N.Y.S.2d 807.)

In articulating the role of trial court discretion, the court in Acunto v. Conklin relied on two Court of Appeals decisions, neither of which addressed specifically the use of criminal convictions for impeachment, but each of which stressed the trial court's discretion on cross-examination for impeachment. ( See Acunto v. Conklin, 260 A.D.2d at 790, 687 N.Y.S.2d 779 [citing Feldsberg v. Nitschke, 49 N.Y.2d 636, 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293 (1980) and Martin v. Alabama 84 Truck Rental, 47 N.Y.2d 721, 722, 417 N.Y.S.2d 56, 390 N.E.2d 774 (1979) ].)

The Court of Appeals decision in Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293 is particularly pertinent here. The question before the court was “whether CPLR 3117 (sub. [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.” ( See id. at 640, 427 N.Y.S.2d 751, 404 N.E.2d 1293.) The court held that CPLR 3117 “does not have such an effect” ( see id.), noting at one point that “CPLR 4514, which permits introduction of a prior inconsistent statementsworn or subscribed by the witness for purposes of impeachment ..., no more limits the trial court's general powers of control than does CPLR 3117” ( see id. at 644 n. 2., 427 N.Y.S.2d 751, 404 N.E.2d 1293) “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.” ( See id. at 643, 427 N.Y.S.2d 751, 404 N.E.2d 1293;see also Cheathem v. Ostrow, 100 A.D.3d 819, 819, 954 N.Y.S.2d 598 [2d Dept. 2012].)

Taking Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293 a step further, CPLR 4513 “no more limits the trial court's general powers of control” than does CPLR 4514 ( see id. at 644 n. 2., 427 N.Y.S.2d 751, 404 N.E.2d 1293) Recognizing, however, the trial court's discretion begs questions as to how that discretion is to be exercised. Even those civil cases that explicitly acknowledge the trial court's discretion are conclusory in their rulings, requiring resort to first principles.

As articulated in the well-known Court of Appeals decision in People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 [1974], the overriding standard governing the “sound discretion” of the trial judge over the nature and extent of cross-examination ( see id. at 374, 357 N.Y.S.2d 849, 314 N.E.2d 413) is “whether the prejudicial effect of impeachment testimony far outweighs the probative worth of the evidence on the issue of credibility”—a standard “easy of articulation but troublesome in many cases of application” ( see id. at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413.) But application is assisted by several principles.

“Evidence of prior specific criminal, vicious or immoral conduct should be admitted if the nature of such conduct or the circumstances in which it occurred bear logically and reasonably on the issue of credibility.” (34 N.Y.2d at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413.) “A demonstrated determination deliberately to further self-interest at the expense of society or in derogation of the interests of others goes to the heart of honesty and integrity.” ( Id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413.) “Lapse of time ... will affect the materiality if not the relevance of previous conduct.” ( Id. at 376, 357 N.Y.S.2d 849, 314 N.E.2d 413.) But “[c]ommission of perjury or other crimes or acts of individual dishonesty, or untrustworthiness ( e.g., offenses involving theft or fraud, bribery, or acts of deceit, cheating, breach of trust) will usually have a very material relevance, whenever committed.” ( Id. at 377, 357 N.Y.S.2d 849, 314 N.E.2d 413.)

“On the other hand, crimes or conduct...