The admissibility of impeachment evidence is key to the defense of any personal injury claim. CPLR section 3101(e) requires disclosure of a party statement and every plaintiff in New York makes a routine demand for statements made by the plaintiff in the possession of the defendant in pre-trial disclosure.
Is the defendant required to disclose statements made by the plaintiff contained in medical records in response to a 3101(e) demand? The defendant did not create or maintain the record, nor was the defendant under a business duty to store the record. Why would the defendant be forced to disclose a statement made by the plaintiff to her own physician as a “party statement” in their possession?
In Vaz v. New York City Transit Authority, decided by the Appellate Division, Second Department on June 14, 2011 (952 N.Y.S. 2d 587), the Appellate Court reversed the order of Judge Hart of Queens County which denied the plaintiff’s motion to set a aside a defense verdict dismissing the action of Marlene Vaz. The plaintiff claimed injuries as a result of an incident on a City Bus at Kennedy Airport. She claimed the driver stopped suddenly, throwing her off her seat to the ground. In a Motor Vehicle Accident form prepared by the plaintiff at her doctor’s office, she gave an inconsistent version of the events of the accident. The Transit Authority cross-examined the plaintiff on the statement during the course of the trial. Fair Game say we all? Not so, says the Appellate Division.
“The Supreme Court improvidently exercised its discretion in permitting the defendant to introduce the MVA form into evidence. Although a party may not be compelled to produce or sanctioned for failing to produce information which he does not possess (seeSagiv v. Gamache, 26 A.D.3d 368, 810 N.Y.S.2d 481; Gatz v Layburn, 9 AD3d 348, 350, 780 N.Y.S.2d 157; Corriel v Volkswagen of Am., 127 AD2d 729, 731, 512 N.Y.S.2d 126), the failure to provide information in its possession will, however, preclude it from later offering proof regarding that information at trial (see Bivona v Trump Mar. Casino Hotel Resort, 11 AD3d 574, 575, 782 N.Y.S.2d 667; Kontos v Koakos Syllogos “Ippocrates,” Inc., 11 A.D.3d 661, 783 N.Y.S.2d 653; Corriel v Volkswagen of Am., 127 AD2d at 731).
The record reveals that the defendant came into possession of the MVA form on November 21, 2002, prior to the commencement of the action. Accordingly, contrary to the Supreme Court’s conclusion, the defendant was required to disclose the MVA form, which constituted the plaintiff’s “own statement” (CPLR 3101[e]), upon the plaintiff’s demand prior to trial (see CPLR 3101[a], [e]). The defendant, however, withheld the document until the midst of trial, and proffered no excuse for its failure to produce the document earlier (see Moog v City of New York, 30 A.D.3d 490, 820 N.Y.S.2d 593;Assael v Metropolitan Tr. Auth., 4 AD3d 443, 772 N.Y.S.2d 364; Mingo v Manhattan & Bronx Surface Tr. Operating Auth., 302 AD2d 274, 756 N.Y.S.2d 13; Pryzant v City of New York, 300 AD2d 383, 750 N.Y.S.2d 779). Where, as here, the central issue is the parties’ credibility; such error cannot be considered harmless (see CPLR 2002; Caplan v City of New York, 34 AD2d 549, 309 N.Y.S.2d 859; cf. Coopersmith v Gold, 89 NY2d 957, 959, 678 N.E.2d 469, 655 N.Y.S.2d 857). Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was to set aside the verdict on the issue of liability and for a new trial.”