Breezy Point Cooperative, Inc. v. Young

Appellate Division of the Supreme Court of New York

Breezy Point Cooperative, Inc. v. Young

234 A.D.2d 409, 651 N.Y.S.2d 121, 1996 N.Y. App. Div. LEXIS 13129

Appellate Division of the Supreme Court of the State of New York·Decided December 16, 1996·Published·Cited by 2 cases

Opinion

—In an action, inter alia, to recover damages for abuse of process, the defendant appeals from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated October 20,1995, as granted that branch of the plaintiffs’ motion which was to preclude him from using any audio tapes at trial to impeach witnesses. Justice Thompson has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the order is reversed insofar as appealed from, with costs, and that branch of the plaintiffs’ motion which was to preclude the defendant from using any audio tapes at trial to impeach witnesses is denied.

The Supreme Court erred in holding that the defendant was precluded from using any audio tapes at trial to impeach witnesses on the ground that the defendant secretly recorded conversations he had with the plaintiffs and nonparty witnesses. These tapes are admissible if they are relevant and material (see, DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Thomas v Fletcher & Sons Auto Repair, 201 AD2d 554; DeCandia v Hudson Waterways, 194 AD2d 314; Kane v Her-Pet Re-frig., 181 AD2d 257) and their admission does not violate the rules of evidence. Miller, J. P., Thompson, Altman and Gold-stein, JJ., concur.

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—In an action, inter alia, to recover damages for abuse of process, the defendant appeals from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated October 20,1995, as granted that branch of the plaintiffs’ motion which was to preclude him from using any audio tapes at trial to impeach witnesses. Justice Thompson has been substituted for the late Justice Hart (see, 22 NYCRR 670.1 [c]).

Ordered that the order is reversed insofar as appealed from, with costs, and that branch of the plaintiffs’ motion which was to preclude the defendant from using any audio tapes at trial to impeach witnesses is denied.

The Supreme Court erred in holding that the defendant was precluded from using any audio tapes at trial to impeach witnesses on the ground that the defendant secretly recorded conversations he had with the plaintiffs and nonparty witnesses. These tapes are admissible if they are relevant and material (see, DiMichel v South Buffalo Ry. Co., 80 NY2d 184; Thomas v Fletcher & Sons Auto Repair, 201 AD2d 554; DeCandia v Hudson Waterways, 194 AD2d 314; Kane v Her-Pet Re-frig., 181 AD2d 257) and their admission does not violate the rules of evidence. Miller, J. P., Thompson, Altman and Gold-stein, JJ., concur.

Breezy Point Cooperative, Inc. v. Young, 234 A.D.2d 409, 651 N.Y.S.2d 121, 1996 N.Y. App. Div. LEXIS 13129 (N.Y. Ct. App. 1996).

Pincite

234 A.D.2d 409 (Breezy Point Cooperative, Inc. v. Young) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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