Gonzalez v City of New York, 2017 NY Slip Op 05180 (1st Dept. 2017)
(1) “To begin, the trial court erred in precluding pictures of the accident site (see Saporito v City of New York, 14 NY2d 474, 476-477 [1964]). Plaintiff authenticated the photographs at his deposition, and further testimony at trial could have explained how and why the scene depicted in the photos did or did not differed from the scene on the day of the accident (see Saporito, 14 NY2d at 476-477). Exclusion of the photographs meant that plaintiff was unable to show the jury the hole into which he allegedly fell.”
I am unsure why the trial judge thought there was an insufficient foundation in this regard.
(2) “[t]he court erred in quashing the subpoenas directed to the City’s onsite inspector and a principal of Halcyon (General Elec. Co. v Rabin, 184 AD2d 391, 392 [1st Dept 1992]). Although plaintiff did not formally name the City’s onsite inspector and the principal of Halcyon as witnesses, nothing in the CPLR requires a party to generate a trial witness list, nor does the record indicate that the individual court rules required him to do so (see Hunter v Tryzbinski, 278 AD2d 844 [4th Dept 2000]). Indeed, there is no requirement that a party depose a witness in order to call him or her as a witness at trial.”
This is an interesting blurb. If a party demands all fact witnesses and does not provide same, then shouldn’t preclusion at trial be the correct remedy?
