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IN THIS TRAFFIC ACCIDENT CASE WHERE “SERIOUS INJURY” WAS AN ISSUE, VIDEO SURVEILLANCE OF PLAINTIFF TAKEN BEFORE THE DEPOSITION AND AFTER A DISCOVERY ORDER WAS PRECLUDED FROM BOTH THE SUMMARY JUDGMENT STAGE AND TRIAL; THERE IS NO SPECIFIC DEADLINE FOR PROVIDING VIDEO SURVEILLANCE GATHERED AFTER THE DEPOSITION; THE POST-DEPOSITION VIDEO SURVEILLANCE WAS NOT PRECLUDED (SECOND DEPT).

The Second Department, modifying Supreme Court, in a full-fledged opinion by Justice Dillon, determined that video surveillance of the plaintiff taken prior to the deposition in this traffic accident case, and after a discovery order requiring disclosure of video surveillance had been issued, could not be used in support of a summary judgment motion re: “serious injury” or at trial. However, video surveillance taken after the deposition need not be provided to the plaintiff by any specific deadline and was not precluded:

… [W]e conclude that the defendant’s noncompliance with the plaintiff’s discovery notice and two court orders, over an extended period of time, was willful and strategic with regard to the [pre-deposition] surveillance video. … [T]he defendant should have been precluded from using the … surveillance video of the plaintiff …, as it was not disclosed prior to the plaintiff’s deposition … . * * *

CPLR 3101(i) contains no language prohibiting the acquisition of surveillance video of a party after that party has testified at a deposition. Nor does any decisional authority. Indeed, CPLR 3101(h) recognizes that disclosure is a continuing obligation, requiring parties to amend or supplement discovery responses when later information is obtained that renders an earlier response inaccurate or incomplete when made or when the prior response, though correct and complete when made, is materially no longer so. And parties are not required to be more forthcoming with surveillance videos than they would with any ordinary discovery material under CPLR 3101(a) … .

That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage … . Rather, trial courts may regulate issues of timing through their preliminary and compliance conference orders … , subject to their authority and discretion to manage their calendars and determine whether to preclude evidence under CPLR 3126(2) for any noncompliance with court-imposed deadlines … . Pizzo v Lustig, 2023 NY Slip Op 02541, Second Dept 5-10-23

Practice Point: Here surveillance video of the plaintiff which was gathered before the deposition and after a disclosure order was precluded from both the summary judgment stage and the trial. There is no specific deadline for turning over video surveillance of the plaintiff gathered after deposition and that video evidence was not precluded.

 

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