Those tax returns…

Young v Lacy, 2014 NY Slip Op 06417 (4th Dept. 2014)

This is an interesting case on impeaching a witness with improperly filed tax returns.  Looks like Plaintiff was going for lost wages in this 5102(d) claim and the defense attorney knew something was awry.  The judge blocked the defense attorney and now a $330,000 personal injury award has been reversed.   For those who practice outside the five boroughs and northwest of the Hudson, hitting for $330,000 on a PI claim is not an easy feat.

“At trial, defendant’s attorney sought to question plaintiff about information in her federal tax returns that he believed to be inaccurate. Specifically, he wanted to ask plaintiff why she had filed as head of household for four consecutive years when she had been married and living with her husband during that period. He also sought to ask plaintiff how many of her children she had claimed as dependency exemptions. According to defendant’s attorney, plaintiff, as a result of her improper filing as head of household, had received a tax credit to which she would not otherwise have been entitled. The court precluded defendant’s attorney from asking plaintiff any questions about information in her federal tax returns, explaining that, because plaintiff had not been asked about such issues at her deposition, defendant’s attorney was improperly attempting to “ambush” her at trial. Defendant’s attorney objected to the court’s ruling, thereby preserving the issue for our review.

“It is, of course, the general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness’s credibility … While the nature and extent of such cross-examination is discretionary with the trial court … , the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue” (Badr v Hogan, 75 NY2d 629, 634). Furthermore, ” cross-examination aimed at establishing a possible reason to fabricate must proceed upon some good-faith basis’ ” (Matter of Michael U. , 110 AD3d 821, 822).

Here, based on his reading of IRS Publication 51 and plaintiff’s federal tax returns, defendant’s attorney had a good faith basis to ask plaintiff about the propriety of her filing status. Moreover, if plaintiff had improperly filed federal tax returns as head of household in order to receive a tax credit to which she was not entitled, it raises the possibility that she may have committed tax fraud. We conclude that evidence that plaintiff may have committed tax fraud has “some tendency to show moral turpitude to be relevant on the credibility issue” (Badr, 75 NY2d at 634; see generally Delgado v Murray, 115 AD3d 417, 418). Although it is true, as plaintiff points out, that, because of the collateral evidence rule, defendant’s attorney would have been bound by plaintiff’s answers concerning her federal tax returns without “refuting answers by calling other witnesses or by producing extrinsic evidence” (Prince, Richardson on Evidence § 6-305 ; see also People v Schwartzman, 24 NY2d 241, 245, cert denied 396 US 846; Casa de Meadows Inc. v Zaman, 76 AD3d 917, 924), we nevertheless conclude that defendant’s attorney should have been allowed to ask the questions (see McNeill v LaSalle Partners, 52 AD3d 407, 410).

Plaintiff’s reliance on Badr (75 NY2d 629) is misplaced. In that case, the plaintiff in a personal injury action was asked on cross-examination whether she had committed welfare fraud. After plaintiff answered “o” (id. at 632), the defendant’s attorney marked as an exhibit a confession of judgment wherein plaintiff had admitted that she had improperly received money from the Department of Social Services and had agreed to pay it back. Over plaintiff’s objection, the court allowed defendant’s attorney to use the confession of judgment to impeach plaintiff’s testimony that she had not committed welfare fraud. The Court of Appeals determined that it was reversible error for the trial court to have allowed the defendant’s attorney to use_extrinsic evidence_, i.e., the confession of judgment, to impeach plaintiff’s credibility (id. at 634-636).

The question presented in the case before us is not whether the court should have allowed defendant’s attorney to impeach plaintiff’s credibility with extrinsic evidence; rather, the question is whether the court should have allowed defendant’s attorney to question plaintiff about information in plaintiff’s federal tax returns that he believed to be inaccurate. Notably, the Court of Appeals in Badr did not suggest that it was error for the defendant’s attorney to ask the plaintiff whether she had committed welfare fraud; the error occurred in allowing the defendant’s attorney to use extrinsic evidence to show that the plaintiff’s answer to the fraud question was false. Here, defendant’s attorney was not permitted even to ask plaintiff his questions, and thus the facts of this case do not come within the holding of Badr. Finally, because plaintiff’s credibility was central to several close issues at trial—including proximate cause, serious injury, and damages—it cannot be said that the error is harmless.”

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Legal Update (February 2026): Since this 2014 decision, New York’s no-fault regulations under Insurance Law § 5102 have undergone several amendments, particularly regarding documentation requirements and verification procedures for lost wage claims. Practitioners should verify current provisions in 11 NYCRR Part 65 and recent case law developments that may affect evidentiary standards for impeachment in no-fault proceedings.