Miller v Lewis
Annotate this CaseDecided on March 20, 2013
Supreme Court, Kings County
Shirley Miller, by YEHUDA MILLER and MALKA MILLER, Guardians of the Person and Property of SHIRLEY MILLER Pursuant to the Laws of the State of Israel, Plaintiffs,
against
Henry F. Lewis, DUANE READE SHAREHOLDERS, LLC, DUANE READE INC., & DUANE READE GENERAL PARTNERSHIP, Defendants
11358/09
Attorney for plaintiff:
Evan Torgan Esq.
Torgan Cooper & Aaron, P.C.
17 State Street - 39th Street
New York, NY 10004
212-232-2500
Attorney for defendant:
Eric Berger Esq.
Cozen O'Connor
45 Broadway
New York, NY 10006 - 3792
212-509-9400
Leon Ruchelsman, J.
The defendants have moved seeking to prevent the plaintiff from utilizing the opening statements or other oral arguments of defense counsel in efforts to impeach certain trial witnesses as admissions against their interest. The plaintiff opposes the motion arguing such introduction and subsequent impeachment is proper. Papers were submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination.
On December 19, 2008 the plaintiff Shirley Miller was hit by a truck driven by defendant Henry Lewis at the intersection of Ninth Avenue and West 48th Street in New York County. The plaintiff maintains that Ms. Miller was first struck by the front of the defendant's truck. Henry Lewis, the driver of the truck offered statements shortly after the accident that he did not see the plaintiff as he was proceeding through the intersection and that he believed one of the tires of the [*2]truck had run over her. He maintained that same version of the facts during his testimony at trial. Plaintiff argues that such version of the accident has been specifically contradicted by defense counsel three times. On November 22, 2011 during oral argument whether the liability and damages portions of the trial should be unified the defense counsel agreed the plaintiff was struck by the front of the truck. Again, during opening arguments at the first trial, the defense counsel agreed the plaintiff was struck by the front of the truck. Lastly, during arguments in court on September 24, 2012 defense counsel again agreed that plaintiff had been struck by the front of the truck. The plaintiff seeks to impeach Henry Lewis with the inconsistencies of Lewis' own attorney as admissions against the interest of Lewis. Plaintiff argues that counsel for Lewis is obviously an agent of Lewis authorized to speak on his behalf and that such inconsistencies may be offered for their truth. Defense counsel concede that Henry Lewis has consistently maintained that he did not see the plaintiff prior to the accident. The defense counsel further agree they have argued and will again argue that expert testimony demonstrates the plaintiff was indeed hit by the front of the truck. The defendants maintain this apparent inconsistency does not permit the impeachment of Henry Lewis since the statements were not made by Lewis but rather by his counsel and that in any event the two versions of the accident are not mutually exclusive.
Conclusions of Law
A judicial admission is any act or statement made during the course of a judicial proceeding which essentially concedes a disputed fact (see, Jones v. Morehead, 68 US 155, 17 L.Ed 662, 1 Wall 155 [1863]). Thus, a statement in a pleading admitting ownership of a vehicle is an admission of such ownership and "conclusive" evidence of that fact (Zegarowicz v. Ripatti, 77 AD3d 650, 911 NYS2d 69 [2d Dept., 2010]). Therefore, a formal judicial admission is a substitute for evidence and absolves a party with the need to present evidence that is the substance of the admission (see, State Farm Mutual Auto Insurance Company v. Worthington, 405 F.2d 683 [8th Cir. 1968]). To be considered a formal judicial admission the statement or act must be clear, unequivocal and deliberate (Rahman v. Smith, 40 AD3d 613, 835 NYS2d 404 [2d Dept., 2007]).
It is generally true that judicial admissions arise from statements made by counsel since they engage in oral argument, prepare legal memoranda, pleadings and responses to various requests. Moreover, if applicable, the admission can concede the ultimate facts of a case rendering the lawsuit superfluous. In 1880 the Supreme Court held that concessions made by an attorney during opening statements bound the client to those statements. In Oscanyan v. Arms Co., 103 US 261, 26 L.Ed 539, 13 Otto 261 [1880] the plaintiff sued to recover sales commissions. However, at trial, during opening statements the plaintiff's attorney conceded that the contract which formed the basis for the commissions was against public policy and hence invalid. In holding the attorney had conceded the very basis for the lawsuit the Supreme Court stated, "in the trial of a cause the admissions of counsel, as to matters to be proved, are constantly received and acted upon. They may dispense with proof of facts for which witnesses would otherwise be called. They may limit the demand made or the set-off claimed. Indeed, any fact, bearing upon the issues involved, admitted by counsel, may be the ground of the court's procedure [*3]equally as if established by the clearest proof" (id). Indeed, in De Vito v. Katch, 157 AD2d 413, 556 NYS2d 649 [2d Dept., 1990] the court considered whether a directed verdict should be awarded in favor of a defendant where the plaintiff's counsel during opening statements admitted that the accident was unwitnessed. The court reviewed the cases on this subject including Oscanyan, (supra) and concluded that concessions or admissions' contained in opening statements could be fatal as judicial admissions only where the statements reveal the "case is doomed to defeat" (id). The court concluded that while an unwitnessed accident would be difficult to prove it was not "ruinous" (id) to the success of the case and refused to dismiss the lawsuit.
These cases cannot support the introduction of defense counsel's opening statements or other statements made in court as admissions' to impeach Henry Lewis. First, the statements, especially the opening statements of the prior trial were not unequivocal or definitive. For example, on page 121 of defense counsel's prior opening statement, concerning plaintiff's injuries, he offered "how did this happen? How did this fracture happen? We believe, and our experts believe, she was striding forward with her right foot first" (id). Counsel then proceeded to argue the plaintiff was hit by the horizontal bars that protrude from the front of the truck. The use of the word "believe" is precisely the sort of equivocal and inconclusive opinion that prevents the statements from being considered admissions of fact (see, Rahman, supra). Moreover, the statements can hardly be considered admissions, without the need to present further evidence, where the defendant himself testified contrarily. Therefore, the statements were not judicial admissions.
It is further well settled that statements made by an authorized agent of an individual may be introduced as admissions against interest of that individual provided the agent was designated with authority to speak on behalf of the individual (Loschiavo v. Port Authority of New York and New Jersey, 58 NY2d 1040, 462 NYS2d 440 [1983]). This authority to speak is narrower than the Federal exception which permits any statement of an agent provided the statement is within the agent's scope of authority (see, Federal Rule of Evidence 801(d)(2)(D)). The case of DiCamillo v. City of New York, 245 AD2d 332, 665 NYS2d 97 [2d Dept., 1997] is instructive. In that case the plaintiff's attorney sent a letter to Big Apple Pothole Corporation inquiring whether the City had notice of a defect at a certain location. However, that location was not the same location offered by the plaintiff himself at his deposition and at trial. The court permitted the letter of the attorney to be introduced since it "was an admission by the plaintiffs' agent receivable against the plaintiffs for the truth of the matter asserted therein" (id). The court did not analyze [*4]the attorney's authority to speak on behalf of the client since there was "no basis for questioning the authority of the plaintiff's attorney" to make those inquiries on his clients behalf (id). The defendants do not dispute the ruling of DiCamillo in particular or the general statements of law in this regard. Rather, they argue that DiCamillo and all the other cases which seem to permit the statements of an attorney to be introduced as admissions are factually distinguishable. Defendants argue that all the cases cited are instances where the statements of the attorney contained information provided by the client, thus, the admission was really one of the client himself or herself and not of an agent at all. The case law supports that understanding. In People v. Rivera, 58 AD2d 147, 396 NYS2d 26 [1st Dept., 1977] the court held it was permissible for the affidavit of defendant's attorney to be introduced as an admission against the defendant where the affidavit contained contradictory information that had been explicitly provided by the defendant himself. That rule was further adopted by the Court of Appeals in People v. Brown, 98 NY2d 226, 746 NYS2d 422 [2002] where it held statements of counsel at a Sandoval hearing could be introduced as admissions against the defendant since the information had been provided by the defendant himself. In an article discussing this and other evidentiary trends the author noted that the court suggested that "if the defendant were not the sole source' of the information, use of the statement for impeachment would have been impermissible" (see, Michael Hutter, 53 Syracuse Law Review 539, 2001-2002 Survey of New York Law: EVIDENCE [2003]).
Likewise, in United States v. McKeon, 738 F.2d 26 [2d Cir. 1984] the court permitted the opening statements of the defense attorney at the second trial as admissions against interest at the defendant's third trial. In McKeon the defendant was charged with exporting firearms. Investigation led to McKeon's warehouse where he claimed he only rented space there and was not involved in criminal activity. The first trial ended in a mistrial when the jury could not reach a verdict. Prior to the second trial, expert evidence was presented demonstrating that billing receipts were created by a copy machine at the place of employment of McKeon's wife Olive. McKeon's attorney claimed in his opening statement that expert testimony would be presented to demonstrate the copy machine at Olive McKeon's place of employment did not match those of the criminal receipts. That trial too ended in a mistrial. At the defendant's third trial, McKeon's defense [*5]counsel conceded in his opening statement that the copies were produced at Olive's place of employment but insisted it was done as a favor for McKeon's landlord unaware of their criminal nature. The prosecution sought to introduce the opening statement of the prior trial as an admission against McKeon's interest since it varied from the defense being maintained at the present trial. The court permitted the introduction of the opening statements as admissions against McKeon's interest, a hearsay exception. The court first marshaled the law in this area acknowledging the precise issue was one of first impression. In Footnote 3 the court stated that "a distinction is generally recognized between an attorney's judicial admissions, which, like any stipulation, can bind a party within a given lawsuit, and an attorney's less formal evidentiary admissions, which are statements made as a party's agent and which the trier of fact may evaluate as it sees fit...We are of course concerned only with evidentiary admissions since no one claims that the opening statement from the second trial estopped McKeon from claiming that his wife had photocopied the receipts at his request" (id). The court concluded that it would be permissible for McKeon to be impeached with the opening statements his attorney made at the prior trial. The court imposed a number of safeguards to insure other important trial policies are not neglected. Thus, the court noted that it "must further determine that the statements of counsel were such as to be the equivalent of testimonial statements by the defendant. The formal relationship of the lawyer as agent and the client as principal by itself will rarely suffice to show this since, while clients authorize their attorneys to act on their behalf, considerable delegation is normally involved and such delegation tends to drain the evidentiary value from such statements. Some participatory role of the client must be evident, either directly or inferentially as when the argument is a direct assertion of fact which in all probability had to have been confirmed by the defendant" (id).
In this case there is no evidence that Henry Lewis participated in any way with the trial strategy adopted by his counsel. In fact, the opposite appears to be true. While Footnote 3 noted above stated that nothing prevented McKeon from asserting his wife made the copies without knowing of their criminal nature, Henry Lewis did assert facts that differed from his attorney. As argued in the American Bar Association Litigation Journal in the Fall of 1985 entitled LITIGATION:LAWYERS ADMISSIONS, by Alan Mansfield (12 No. 1 [*6]Litigation 39 [1985]) "it is doubtful whether a court would find that the client admits by adoption facts that his lawyer asserts in the opening statement when there is no reason to conclude that the client was the source of the information. Decisions as to trial strategy and the presentation of factual and legal argument have uniformly been held to be within the trial counsel's discretion" (id).
Since, clearly, Henry Lewis was not the source of the information contained in counsel's opening statements or other court representations evidence of those statements may not be introduced against him as admissions of an agent. Likewise, Robert Holtzman M.D. may not be impeached by any prior arguments of counsel since defense counsel is not an agent of Dr. Holtzman.
The plaintiff argues that it is improper and unfair to allow Henry Lewis and his counsel to present varying versions of the accident to their own advantage. Plaintiff argues that "under these circumstances, the jury is entitled to know that defendants believe, and have stated, that their proof establishes something different from what they claimed at the first trial and are likely to claim at the second trial" (see, plaintiff's Memorandum in Opposition, page 3). The court has already addressed the impermissibility of offering any statements sought to be introduced from prior court appearances. Concerning the likely scenario that Henry Lewis and his own counsel will once again offer varying versions of the happening of the accident the plaintiff will not be permitted to impeach Mr. Lewis with the statements of counsel. However, plaintiff may comment upon such inconsistency at the close of the trial. An article written by Charles Baum entitled COURTROOM STRATEGIES LEADING LAWYERS ON PREPARING FOR A CASE, ARGUING BEFORE A JURY, AND QUESTIONING WITNESSES PERSUASIVE STRATEGIES: PLEADING YOUR CASE TO JUDGES AND JURIES (Aspatore 2008) highlights the effectiveness of such strategy. In a scenario where counsel in opening statements offered a version of the events than was contradicted by the testimony of his client and then in closing statements adopted his client's version of the events, the article notes that an effective tool of impeachment' is to argue to the jury as follows: "[The party] told you the incident happened in this way, and his attorney is saying the same thing; but if you remember, two days ago in his opening statements, this attorney [pointing] told you that you would hear the witness say one thing, but now you are hearing something different. They are trying to trick you, and present the evidence in whatever way they feel will win [*7]their case. How can this person [pointing to the attorney] look you in the eye and tell you one thing one day, and then two days later, look you in the eye and tell you something else?" (Id).
In conclusion, no witnesses of the defendant will be impeached in any manner with any statements made by defendant's counsel.
So ordered.
ENTER:
DATED: March 20, 2013_________________________
Brooklyn NYHon. Leon Ruchelsman
JSC
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