CPLR Case of the Week #6

Second Department in decision by P.J Dillon offers a veritable treatise on the history of, and rules currently governing the exchange of surveillance videos

In Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023) the Second Department addressed both the merits, and the motion court’s exercise of discretion, with regard to plaintiff’s application to preclude the admission at trial of surveillance videos taken of the plaintiff by defendant’s private investigator.  The surveillance videos in question fell into two categories: a single video taken before the deposition of the plaintiff was conducted, and seven others taken after the plaintiff’s deposition had been [completed.]  All were exchanged prior to the filing of the note of issue.

The decision began by comparing the state of video surveillance in 1993, the year CPLR 3101(i) was enacted to deal with the exchange of surveillance videos, and today, where the ubiquity of surveillance and cellphone cameras coupled with the ever increasing use of private investigators, has rendered the surveillance landscape unrecognizable from the vantage point of 1993, and concluded “[w]e might expect that surveillance video will play an increasing role in the assessment of claims, discovery, and trials,” and then framed the issue before the court:

In that vein, we address here the difference between pre-deposition and post-deposition disclosure requirements for surveillance materials under CPLR 3101(i), and the factors that are to be considered by courts under CPLR 3126 in determining whether to preclude such materials disclosed beyond conference order deadlines.

Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)

The decision sets forth in great, and necessary, detail the timeline of events leading up to plaintiff’s application to preclude all of the surveillance videos, and to fully appreciate the holding you may want to review those facts.  Plaintiff moved for summary judgment pre-note of issue and defendant, following service of the motion and also pre-note, served plaintiff with all eight surveillance videos, together with the reports of both the eight successful, and several unsuccessful surveillance reports required under CPLR 3101(i), and the used the surveillance videos in its opposition to the summary judgment motion.

This prompted plaintiff to serve a second motion, which it wrongly denominated a cross-motion.  In opposition, defendant lodged a procedural objection to the short service of the “cross-motion,” conceded that the first, pre-deposition surveillance video should have been served before the plaintiff’s deposition, “but urged that post-deposition surveillance video was timely disclosed because CPLR 3101(i) sets no disclosure deadline, discovery between the parties was still ongoing, and no note of issue had yet been filed in the action.”

On the merits, plaintiff “argued that the defendant’s opposition to the preclusion motion was not supported by an affidavit from the videographer to authenticate the films, rendering them inadmissible in opposition to the summary judgment motion.”

The motion court denied plaintiff’s summary judgment motion, and:

[D]isregarded the technical defect of the plaintiff seeking relief by means of a cross-motion, as the defendant was heard on the merits of the application and there was no prejudice to any party. The court further held that the plaintiff failed to establish that the alleged late disclosure of the surveillance material was willful or contumacious or that the plaintiff was prejudiced in any way, and consequently, the preclusion motion was denied in its entirety.

Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)

The Second Department modified the motion court’s order only to the extent of precluding the pre-deposition video, which defendant had conceded was untimely, and otherwise affirmed, and concluded that the motion court’s exercise of discretion was not improvident.  The appellate court later noted that this might led to defendant’s waiting to conduct any surveillance until after the plaintiff’s deposition.  The Second Department highlighted the potential evidentiary impact of the type of surveillance videos at issue:

This Court recognizes the true impetus behind the parties’ dispute over the defendant’s potential use of surveillance video materials. From this record, the plaintiff seeks to recover damages for personal injuries allegedly sustained through the fault of the defendant, qualifying under at least, inter alia, the significant limitation and permanent consequential limitation prongs of the definition of serious injury under New York’s threshold injury law (citation omitted). The videotapes at issue here, if timely disclosed, admissible, and probative, could affect threshold injury determinations made at the summary judgment stage of litigation or at trial. The same issues may affect similarly situated cases in our state.

Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)

After discussing the balancing of factors inherent in the motion court’s exercise of discretion, the court embarked on an encyclopedic tour of the law governing disclosure of surveillance videos, a section of interest not just to CPLR Geeks but to anyone interested in the evolution of judicial and legislative thinking on a topic of procedure.

The opinion synthesized the controlling authority:

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) (citation omitted).

That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage (citations omitted). Rather, trial courts may regulate issues of timing through their preliminary and compliance conference orders (citation omitted), 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 (citation omitted).

Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)

And then the Second Department concluded, in cautionary language meant to be taken seriously:

This opinion should not be read to suggest that post-deposition surveillance material may never be precluded. Only, that circumstances warranting preclusion are not present here.

Pizzo v Lustig, _AD3d_, 2023 NY Slip Op 02541 (2d Dept. 2023)

Decision Date: May 10, 2023

Practical Practice Point

The Pizzo Court’s decision is so comprehensive that a longer than usual practice point is in order.  The starting point in analyzing the disclosure of surveillance videos is the controlling statute, CPLR 3101(i):

(i) In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use. The provisions of this subdivision shall not apply to materials compiled for law enforcement purposes which are exempt from disclosure under section eighty-seven of the public officers law.

CPLR 3101(i)

As recited by the Pizzo Court, Tai Tran v New Rochelle Hosp. Med. Ctr., 99 NY2d 383 (2003) and Zegarelli v Hughes, 3 NY3d 64 (2004) are required reading, but beyond that Pizzo v Lustig is itseld the roadmap to guide pre-trial and trial practice in this area.

And what about the ominous sounding ending:

This opinion should not be read to suggest that post-deposition surveillance material may never be precluded. Only, that circumstances warranting preclusion are not present here.

It is critical to recall that all of the exchanges in Pizzo took place prior to the filing of the note of issue, when discovery was still open and parties were not limited by the stringent post-note of issue standard for obtaining additional disclosure.  So Pizzo doesn’t touch on post-note exchange of surveillance videos obtained pre-note, nor surveillance video obtained post-note.  It is interesting to contemplate defendant’s strategy on exchanging the surveillance video if plaintiff had not moved for summary judgment and defendant elected to use the videos in opposing the motion.  Keep in mind the usual admonitions against “trial by ambush,” favoring “deciding cases on the merits,” and avoiding “prejudice,” all of which should inform your analysis of how to proceed in, at least as far as Pizzo is concerned, uncharted waters.  And, finally, remember the oft-repeated warning by Professor David Segal:  when embarking on a course that will necessarily make new law, “let it be in someone else’s case” first.