Dittmer v. Terzian

Clark, Gagliardi & Miller, P.C., White Plains, and Burke, Lipton, Puleo & McCarthy, White Plains, for plaintiffs. Harms, Mahon, Finneran, Gialleonardo & Whelan, Elmsford, for Scott T. Terzian, defendant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, for Ford Motor Credit Company, defendant.

OPINION OF THE COURT

ANDREW P. O'ROURKE, J. Ordered that these motions are disposed of as follows: This is an action to recover for personal injuries allegedly sustained by the infant plaintiff Jeffrey C. Dittmer on August 27, 2002, who, while roller blading on a street, had been struck by defendant Terzian's vehicle. In its decision and order, dated June 8, 2004, this court had set forth a detailed statement of the facts disclosed by the record, which will not be restated herein, and had denied defendants' motions for summary judgment dismissing the complaint and granted plaintiffs' motion seeking summary judgment dismissing defendant Ford's counterclaim.^[*] A number of trial-related issues are presented by the motions and applications sub judice. Firstly, plaintiffs are moving for an order pursuant to Vehicle and Traffic Law § 1238 (7), precluding the testimony of defendant Ford's expert biomechanical engineer, James Newman, Ph.D., who, based upon said defendant's disclosure pursuant to CPLR 3101, is expected to testify relative to the injuries sustained by Jeffrey and, specifically, that the alleged injuries were caused by Jeffrey's head making contact with the pavement and that had he been wearing a helmet the alleged traumatic head injuries would not have occurred. Secondly, plaintiffs are moving for an order granting a unified trial and for a deposition of defendant Ford's videographer regarding his outdoor surveillance of Jeffrey on school grounds which resulted in three videotapes which said defendant has disclosed. Related to this application, plaintiffs further are moving for an order that defendant Ford produce any notes, surveillance logs and/or other written materials created by the investigator in connection with the subject surveillance. Lastly, plaintiffs seek an order directing that not more than one defense counsel participate in this trial since the defendants are united in interest. Defendant Ford vigorously opposes all of the above requests for relief. In addition to arguing that plaintiffs have misinterpreted Vehicle and Traffic Law § 1238 (7), and that same does not preclude the introduction of evidence relative to Jeffrey's failure to have worn a helmet, defendant Ford alternatively argues by way of cross motion that if plaintiffs are correct in their interpretation of said statute then same must be declared unconstitutional. Moreover, defendant Ford opposes plaintiffs' application for a unified trial, as well as plaintiffs' application for an order allowing a deposition of defendant Ford's videographer. These motions will be addressed at length seriatim. The court first will address plaintiffs' motion for an order precluding the testimony of defendant Ford's expert Dr. Newman. Vehicle and Traffic Law § 1238 (5-a) provides that:

"No person, one or more years of age and less than fourteen years of age, shall skate or glide on in-line skates unless such person is wearing a helmet meeting standards established by the commissioner. For the purposes of this subdivision, wearing a helmet means having a helmet of good fit fastened securely on the head of such wearer with the helmet straps securely fastened."

Subdivision (7) of Vehicle and Traffic Law § 1238 provides:

"The failure of any person to comply with the provisions of this section shall not constitute contributory negligence or assumption of risk, and shall not in any way bar, preclude or foreclose an action for personal injury or wrongful death by or on behalf of such person, nor in any way diminish or reduce the damages recoverable in any such action."

From plaintiffs' point of view, the foregoing mandate could not be more clear: "the failure to wear a helmet cannot be used in any way to reduce damages in a personal injury action," and defendants may not use the failure to wear a helmet as a defense in this action. Accordingly, plaintiffs submit they are entitled to an order precluding the introduction of any evidence regarding Jeffrey's failure to have worn a helmet and, specifically, Dr. Newman's testimony. Props., 215 AD2d 461 [2d Dept 1995]; Fitzgibbon v County of Nassau, 182 AD2d 670 [2d Dept 1992].) Regarding plaintiffs' application for an order granting them the opportunity to depose defendant Ford's investigator, the videographer of the three separate videotapes produced to plaintiffs, the court finds that CPLR 3101 (i) is implicated and grants same to the limited extent that defendant Ford, if it has not previously served upon plaintiffs the outtakes, if any, shall forthwith do so and, further, plaintiffs shall be afforded the opportunity to examine the original tapes. (See Zegarelli v Hughes, 3 NY3d 64, 68-69 [2004].) The court parenthetically notes that should defendant Ford wish to introduce these videotapes at trial, the videos necessarily must first be authenticated, which requires having the videographer testify that he took the videos, that they correctly depict what he saw and that they have not been altered or edited in any way. (Id. at 69.) Plaintiffs would be afforded the opportunity to cross-examine the videographer on issues of authentication prior to introduction of same into evidence. Finally, the court denies plaintiffs' application for an order directing that not more than one defense counsel participate in the trial. Not only does the court find this belated request, coming as it does literally on the eve of trial, to be unfair, particularly where defendants had not been accorded any advance notice of same, having been handed plaintiffs' brief on this issue during oral argument, and were prejudiced in their ability to respond thereto, but the court finds such relief unwarranted and without good cause to deviate from the basic tenet that each party is entitled to counsel of his or her own choice. While it is true that the liability issue presented unites the two defendants, the court cannot agree that where defendant driver has private insurance and defendant leasing company is self-insured and, further, there is a cross claim for contractual indemnification that their interests are identical warranting a single defense. [*] This decision and order presently is under appeal but no stay of the trial is in effect.