Wade Clark Mulcahy LLP

Typically, a trial judge has the ability to determine if a witness is unavailable for testimony. However, in this instant matter, apparently emergency transportation from the courthouse in an ambulance after falling ill in the middle of trial may be insufficient to be deemed unavailable on its own. This was the case in the Second Department’s recent decision, <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/244-Linwood-One-LLC-et-al.-v.-Tio-Deli-Grocery-Corp..pdf">244 Linwood One, LLC, et al., v. Tio Deli Grocery Corp. </a></em>2020-04245, Index No. 514636/17. In this lawsuit regarding seeking the declaration of a lease null, the premises owner Latchman Awad, was in the midst of giving testimony when he fell ill, requiring an ambulance to be called to bring him to the hospital. Shortly after this, the trial judge, informed the attorneys about the situation and,<em> sua sponte</em>, had Awad’s testimony up to that point struck from the record and deemed Awad to be unavailable for testimony. His reasoning for this was that it was unclear when he would be available for testimony in the future – or even if Awad would ever be available. With this, the judge then allowed Awad’s deposition testimony to be read into the record. After this, the lease and addendum were deemed void ab initio.

Upon appeal, the Second Department determined that the trial judge abused his discretion in determining Awad unavailable, despite having actual notice of the emergent condition. Its reasoning was that this decision was made without sufficient determination as to the severity of Awad’s illness. Specifically, the Court had received no evidence as to the severity of Awad’s illness. Moreover, the trial Court received no records determining what specifically Awad was suffering from, what his treatment consisted of, or if he went to the hospital and if so, for how long. The Second Department clearly felt that without this information, the trial judge had jumped to conclusions in determining Awad was unavailable without further information to show just how bad his condition really was. Due to this decision, the Second Department sent the case back to the trial court for a new trial. This decision is an interesting one as the Courts generally find a trial judge has a wide latitude in making decisions in their courtrooms, yet in this case, the Second Department found that this was a step too far.

Thanks to Patrick Argento for his contribution to this article.  Should you have any questions, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.