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You Get What You Ask For: Trial Dismissal Reversed Based On Discovery Demands (NY)
September 16, 2016
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In <em><a href="https://scholar.google.com/scholar_case?case=8095997441898913175&hl=en&as_sdt=6&as_vis=1&oi=scholarr">Fox v. Grand Slam Banquet Hall,</a></em> plaintiff's case was dismissed due to the untimely production of a video of the scene of her accident. Plaintiff alleged she fell when she tripped over wires when she was attending a party at a banquet hall. During her deposition, plaintiff provided confusing testimony as to whether the party was videotaped and if she had a copy of any video. But at trial, she produced the video in the middle of cross-examination and the court dismissed the case.
But the the First Department reversed the lower court's dismissal of the plaintiff's complaint. Part of the reason was that plaintiff did not seek to enter the video into evidence, that it depicted the wires and not her fall, and that there was no proof that she willfully withheld it. But one of the main reasons was the fact that the defendants requested production of "any photographs taken at the time of the alleged incident" -- and not any videos. As such, there was no court order directing the production of videos.
The First Department therefore reinstated the plaintiff's complaint and granted the defendant 60 days to conduct additional discovery of the videographer and the plaintiff regarding the video.
Thanks to Geoffrey Bleau for his contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono </a>for more information.