Wade Clark Mulcahy LLP

<p style="text-align: justify;">In a recent trial, the City of New York’s key witness was a non-party and Corporation Counsel disclosed her phone number and last-known address during the course of discovery.  Despite this disclosure, the trial judge sanctioned the City, precluded the witness, and refused to make alternate arrangements for her to testify when she expressed a disinterest in testifying before a jury.  The trial judge evidently also took issue with the City’s failure to produce the witness’ new address when she moved during the years when discovery was ongoing.  The sanctions played a key part in a $2.4 million verdict rendered against the City.</p>
<p style="text-align: justify;">The First Department, in <a href="https://www.wcmlaw.com/wp-content/uploads/2019/12/Onilude-v.-City-of-New-York.pdf"><em>Onilude v. City of New York</em></a> recently reversed this decision in its entirety—including other rulings—and remanded the matter for a new trial.  The appellate court observed the City’s disclosure of the non-party witness’ contact information was sufficient to satisfy their burden and that pursuant to the CPLR, the City did not have control over the witness sufficient to hold the defendant responsible for determining and disclosing her new address.</p>
<p style="text-align: justify;">Defendants frequently have non-party witnesses who are necessary and knowledgeable about the facts of the case at hand.  It’s unsurprising that in the course of discovery, which usually takes several years, that non-parties may move or change employment.  Even employees involved with a particular transaction may leave the company for any number of reasons and become non-parties.  As part of assembling and preserving the necessary evidence when an accident occurs or a suit is filed, employers and attorneys should diligently collect last-known contact information for all witnesses and non-parties in order to protect themselves from adverse rulings at the time of trial.</p>
<p style="text-align: justify;">Thanks to Nicholas Schaefer for his contribution to this post. Please e-mail <a href="mailto:vterrasi@wcmlaw.com">Vincent F. Terrasi</a> with any comments.</p>