Page 22 - WCBA Appellate Practice Committee CLE May 2024-Handout

CONTINUING LEGAL EDUCATION

“NEW STUFF IN APPELLATE PRACTICE”

WESTCHESTER COUNTY BAR ASSOCIATION

DIUTCHESS COUNTY BAR ASSOCIATION

ORANGE COUNTY BAR ASSOCIATION

SOCIETY OF IRISH AMERICAN LAWYERS
May 14, 2024, 6:00 p.m. (via Zoom)

Hon. Mark C. Dillon Hon. Colleen Duffy Hon. Linda Christopher Hon. Barry Warhit

Justices, Appellate Division, Second Judicial Department

HANDOUT MATERIALS

CASES TO BE PRESENTED BY DILLON, J.

Pizzo v Lustig, 216 AD3d 38 (2023) (opinion by Dillon, J.).

The defendant in a two-vehicle personal injury action obtained survellance video of the plaintiff on eight
occasions, two prior to the plaintiff’s deposition testimony and seven after the deposition was
completed. The videotapes were not disclosed until after the plaintiff moved for summary judgment,
and were proffered to establish that the plaintiff did not suffer a compensable serious injury under
Insurance law 5102 and 5104. The plaintiff sought their exclusion from evidence for not having been
earlier disclosed within the deadline of a scheduling order. The Appellate Division held that the pre-
deposition video needed to be precluded on the basis of authority from the Court of Appeals, but that
the remaining videos were admissible as the disclosure was not significantly delayed from the cessation
of the overall surveillance, the disclosure occurred prior to the filing of a note of issue and certificate of
readiness, and the plaintiff was not prejudiced by the disclosure's timing. CPLR 3101(i), 3126(2).

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