Feldsberg v. Nitschke

Appellate Division of the Supreme Court of New York

Feldsberg v. Nitschke

66 A.D.2d 757, 412 N.Y.S.2d 2, 1978 N.Y. App. Div. LEXIS 14031

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 28, 1978

StatusPublished

This text of 66 A.D.2d 757 (Feldsberg v. Nitschke) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Feldsberg v. Nitschke, 66 A.D.2d 757, 412 N.Y.S.2d 2, 1978 N.Y. App. Div. LEXIS 14031 (N.Y. Ct. App. 1978).

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Opinions

Judgment, Supreme Court, New York County, entered March 17, 1977, denying plaintiff damages for wrongful death and conscious pain and suffering is affirmed, without costs and without disbursements. During the course of this proceeding in trial court, plaintiff called the defendant as his witness and examined him exhaustively, in the process utilizing defendant’s pretrial deposition. Plaintiff completed his examination and the witness was excused. Later, plaintiff recalled the witness for the purpose of placing identifying marks on some photographs; then stated his intention to read portions of the defendant’s deposition. The trial court ruled that inasmuch as plaintiff had examined the witness at length on his deposition he could not now again continue the examination. What is at issue here is the question of the discretionary right of the Trial Judge to limit examination, and the trial court is vested with a wide discretion to regulate the order, manner and scope of examination. At the time, the Trial Judge pointed out his reasons for not permitting this type of examination as being violative of the fundamental rule of fairness with regard to the procedure for examining witnesses. In speaking of this discretion, the court in People v Sorge (301 NY 198, 202) said "the wide latitude and the broad discretion that must be [758]*758vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of 'plain abuse and injustice’ (La Beau v. People, supra, 34 N. Y. 223 230), from substituting its judgment for his and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.” Accordingly, the judgment of the trial court should be affirmed. Concur-Kupferman, J. P., Evans and Markewich, JJ.; Sandler, J., concurs in the result only.

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Judgment, Supreme Court, New York County, entered March 17, 1977, denying plaintiff damages for wrongful death and conscious pain and suffering is affirmed, without costs and without disbursements. During the course of this proceeding in trial court, plaintiff called the defendant as his witness and examined him exhaustively, in the process utilizing defendant’s pretrial deposition. Plaintiff completed his examination and the witness was excused. Later, plaintiff recalled the witness for the purpose of placing identifying marks on some photographs; then stated his intention to read portions of the defendant’s deposition. The trial court ruled that inasmuch as plaintiff had examined the witness at length on his deposition he could not now again continue the examination. What is at issue here is the question of the discretionary right of the Trial Judge to limit examination, and the trial court is vested with a wide discretion to regulate the order, manner and scope of examination. At the time, the Trial Judge pointed out his reasons for not permitting this type of examination as being violative of the fundamental rule of fairness with regard to the procedure for examining witnesses. In speaking of this discretion, the court in People v Sorge (301 NY 198, 202) said "the wide latitude and the broad discretion that must be [758]*758vouchsafed to the trial judge, if he is to administer a trial effectively, precludes this court, in the absence of 'plain abuse and injustice’ (La Beau v. People, supra, 34 N. Y. 223 230), from substituting its judgment for his and from making that difference of opinion, in the difficult and ineffable realm of discretion, a basis for reversal.” Accordingly, the judgment of the trial court should be affirmed. Concur-Kupferman, J. P., Evans and Markewich, JJ.; Sandler, J., concurs in the result only.

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Bluebook (online)

66 A.D.2d 757, 412 N.Y.S.2d 2, 1978 N.Y. App. Div. LEXIS 14031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feldsberg-v-nitschke-nyappdiv-1978.

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