Court of Appeals to Resolve Appellate Division Conflict on The Law Of Surveillance Tapes Disclosure
December, 2002
In Volume 2 of CM REPORT NEW YORK, we reported on the First Department’s March, 2002 ruling in Tran v. New Rochelle Hospital Medical Center, 740 N.Y.S.2d 11, a case in which that Department issued a defense-friendly ruling on the issue of disclosure of surveillance tapes of a plaintiff. In Tran, the First Department ruled that where a defendant obtained post-deposition surveillance footage of plaintiff, plaintiff would have to submit to a second deposition before the defendant would be required to turn over the surveillance video. The First Department reasoned that such a result “serves an important truth-finding function in view of the newly-discovered facts, and meets the concern of possibly tailored testimony when conducted prior to disclosure....This outcome does not present the risk of sandbagging or trial by ambush, inasmuch as plaintiff [is] already fortified with the knowledge of the existence of video surveillance materials, and will have the tapes for examination prior to trial.” As we reported, the First Department’s decision in Tran is in direct conflict with decisions of the Third and Fourth Departments on the same issue. Those departments have held that surveillance videos of plaintiff must be disclosed upon demand regardless of whether or not plaintiff has been deposed, thus leaving open the possibility of “tailored testimony.”
As expected, given this direct split among the Appellate Division departments, the Tran plaintiff appealed to the Court of Appeals. On September 10, 2002, the high court stayed implementation of Tran while it considered the question. (748 N.Y.S.2d 897)
Approximately six weeks after the Court of Appeals stayed Tran, the Second Department handed down Falk v. Inzinna, 749 N.Y.S.2d 259. In Falk, the Second Department adopted the position taken by the Third and Fourth Departments. The Second Department, recognizing the conflict in the law presented by Tran and the Court of Appeals’ pending resolution of the issue, reasoned primarily that CPLR 3101 -- the pertinent disclosure statute -- does not specify the timing of the “full disclosure” it requires:
...CPLR 3101(i) created a separate and distinct disclosure device pertaining to a party’s right to obtain surveillance materials – unrelated to the priority of depositions set forth in CPLR 3106(a). This court has consistently held that CPLR 3101 does not set forth any specific order of priority as to the use of the various disclosure devices. Rather, a party is generally free to choose both the discovery devices it wishes to use and the order in which to use them.
The Second Department then summarily addressed the concern of tailored testimony:
[W]e find that requiring a defendant to turn over surveillance materials upon a plaintiff’s demand and prior to depositions need not result in any undue prejudice, such as tailored testimony by the plaintiff, since a defendant may seek an appropriate protective order pursuant to CPLR 3103(a).
We shall monitor the Court of Appeals for its ruling in Tran and report further once that decision is reached resolving this important conflict of law in New York. •
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