New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2000-009-442, Claim No. 91420, Motion No. M-62404


Synopsis



Case Information

UID:
2000-009-442
Claimant(s):
EMMA LEE BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
91420
Motion number(s):
M-62404
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
GEORGE D. PATTE, JR. ESQ.
Defendant's attorney:
SUGARMAN, WALLACE, MANHEIM & SCHOENWALD, LLP
BY: Thomas J. Murphy, Esq., of Counsel.
Third-party defendant's attorney:

Signature date:
November 21, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The trial of the damages portion of this claim was scheduled to commence on November 1, 2000. Prior to that date, claimant brought this motion returnable October 18, 2000, seeking an order precluding any use at the trial of a surveillance video tape made by the defendant of the claimant.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of George D. Patte, Jr., Esq., Affidavit of Emma Brown, with Exhibits 1,2,3


Memorandum of Law in Support 4

Affidavit in Opposition of Thomas J. Murphy, Esq., with Exhibits 5


Affidavit of Michael R. Callahan, with Exhibit 6


Reply Affirmation of George D. Patte, Jr. Esq. 7

At the scheduled commencement of this damages trial on November 1, 2000, the trial was adjourned to February 14, 2001, for reasons unrelated to this pending motion. At that time, however, counsel for the parties were advised in open Court of the Court's decision regarding admissibility of this video tape. This decision and order confirms the determination of the Court given to counsel on that date.

A surveillance video tape was made of the claimant by an investigator for the defendant on April 9, 1998. Claimant seeks to preclude its use at the damages trial on the basis that it is not a "true and accurate depiction" of the claimant, and that defendant has failed to produce to the claimant all surveillance video out-takes and all memoranda associated with the video.

Claimant argues that the video taken of her depicts only a part of her movements on the day in question, and excludes certain stretching movements made by claimant, as well as omitting several minutes when she apparently was still in view, but was not taped.

Claimant has not suggested, however, that this video tape was altered, distorted, or manipulated in any manner whatsoever. The fact that the video does not show claimant in the way she wants herself to appear, and does not include her entire actions, provides no basis for this Court to preclude the use of this video tape at trial.

Furthermore, claimant argues that the video tape should be excluded from evidence since she was not provided with all out-takes and memoranda regarding the surveillance tape.

A written report from James E. Mathews to defendant's attorney dated May 12, 1998, has previously been provided to claimant's counsel. By letter dated September 8, 2000, defendant's counsel advised claimant that no other surveillance materials existed. In response to this motion, defendant's counsel has further represented that all surveillance material has been disclosed to claimant, and in addition has supplied the affidavit of Michael R. Callahan, the investigator who actually performed the surveillance of claimant on April 9, 1998. These representations establish that no other surveillance material exists, other than what has already been provided to claimant.

Accordingly, based upon the above, there is no basis to preclude the use of the surveillance video taken of claimant on April 9, 1998, and the Court determines that this video tape is admissible at the damages trial.

It is therefore,

ORDERED, that Motion No. M-62404 is hereby DENIED.


November 21, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims