Donahue v. Quikrete Companies

[1009] Appeal from a judgment of the Supreme Court, Erie County (Eugene M. Fahey, J.), entered June 8, 2004. The judgment was entered in favor of defendants following a jury trial. It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries sustained in a motor vehicle accident in 1999. He was stopped at a traffic light when his vehicle was rear-ended by a tractor trailer driven by defendant Joseph T. Syracuse in the course of his employment for defendant The Quikrete Companies. Supreme Court granted a mistrial in September 2002 and, at the second trial, restricted the evidence to the facts as they existed as of September 9, 2002. The jury returned a verdict in favor of defendants, finding that plaintiff did not sustain a serious injury as a result of the accident. Plaintiff contends that the court erred in restricting his medical evidence to the videotaped testimony of his treating physician that was taken for use at the first trial. We disagree. The court properly restricted the evidence based on its concern that, because of a subsequent accident, the jury would be confused by different medical testimony. The court also balanced its ruling by refusing to allow the defense to introduce a surveillance videotape apparently showing plaintiff engaged in work-related activities. Contrary to the contention of plaintiff and the conclusion of the dissent, the court did not err in allowing defendants’ attorney to ask plaintiff on cross-examination whether he had offered a bribe to a police officer. The fact that the alleged act occurred “about 17 years” prior to the trial does not render the cross-examination improper. “Commission 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” (People v Sandoval, 34 NY2d 371, 377 [1974] [emphasis added]; see People v Nichols, 302 AD2d 953 [2003], lv denied 99 NY2d 657 [2003]; People v Coif, 286 AD2d 888, 889 [2001], lv denied 97 NY2d 655 [2001]). Moreover, plaintiff was not questioned, as suggested by the dissent, concerning “a mere charge or accusation,” but was properly [1010] asked whether he had committed the alleged underlying act of attempted bribery (see Matter of Robert T., 220 AD2d 434 [1995], lv denied 87 NY2d 808 [1996]; Gedrin v Long Is. Jewish-Hillside Med. Ctr., 119 AD2d 799 [1986]; Dance v Town of Southampton, 95 AD2d 442, 453 [1983]; cf. People v Cook, 37 NY2d 591, 595-596 [1975]). The court thus properly exercised its discretion in permitting the cross-examination. We also disagree with the conclusion of the dissent that the cross-examination was not undertaken in good faith and upon a reasonable basis in fact (see generally People v Duffy, 36 NY2d 258, 262 [1975], mot to amend remittitur granted 36 NY2d 857 [1975], cert denied 423 US 861 [1975]; People v Alamo, 23 NY2d 630, 634-635 [1969], cert denied 396 US 879 [1969]; Matter of Jessica Z, 206 AD2d 598, 599 [1994]; People v Burwell, 159 AD2d 407, 409 [1990], lv denied 76 NY2d 785 [1990]). The record establishes that, in response to the court’s questions concerning the factual basis for the cross-examination, counsel for defendants responded that it was in “material” related to a prior conviction of plaintiff that counsel had subpoenaed from Buffalo City Court. Counsel further represented that, specifically, the factual basis was found in allegations of “police officers” contained in “the information.” Those representations were not challenged by counsel for plaintiff, who argued only that the court should preclude the cross-examination in the exercise of discretion. It is thus clear that there was an ample demonstration of both good faith and a reasonable basis in fact (see Alamo, 23 NY2d at 634-635; Burwell, 159 AD2d at 409). All concur except Green, J.P., who dissents and votes to reverse in accordance with the following memorandum.