This case involves a 78 year old Brooklyn resident, employed by the New York City Police Department as a crossing guard, who was involved in an accident with an unmarked police car. The police vehicle was driven by a plainclothes police officer who was transporting a prisoner to Kings County Central Booking located in downtown Brooklyn. This accident took place on December 29, 2006, at approximately 12:45 p.m. at the intersection of Atlantic and Washington Avenues. Both drivers claimed that they had the green light.
What is interesting about this case are the issues of fact and law concerning the witnesses that the City of New York expected to call on its behalf. Police officers responded to the scene of the accident and generated a police accident report which is a customary practice for all accidents. The police officers listed the prisoner in the unmarked police car as a witness to the accident. The City of New York claimed that the prisoner was going to testify that the police officer and not our client had the green light at the time of the accident. Under the New York rules of procedure, each side must divulge the name and address of every witness each party intends to call on their behalf. The address that City provided for the prisoner was not a valid one and our investigator was never able to get a statement from him. At the last Pre-Trial Conference, the City's attorney conceded that they did not have a valid address for the prisoner and would not be calling him as a witness at the trial. Approximately six (6) weeks later, as we were about to commence jury selection, the City's attorney notified us that they had located the prisoner. Having not had the opportunity to interview the witness, we demanded that a judge rule as to whether the prisoner could testify at the trial. We argued to the judge that the City had more than enough time to supply us with the correct address or telephone number and that our client would be severely prejudiced if we were forced to go to trial without either getting a statement or deposing the witness. The City argued that we alone had the responsibility of finding this witness and just as their investigator had found him; our investigator could have found him. We responded that only the City had the witness' personal information and furthermore under the rules of the Court, it was their obligation to provide a valid address or telephone number for the witness at a reasonable time before trial, not when we were going to start selecting a jury. The judge ruled that the City was to supply us with the correct information immediately. Furthermore, he directed the parties to report back in one (1) month to proceed with jury selection. The City immediately provided a phone number for this witness. However, as it turned out, it was not a valid number. We attempted for weeks without success to get the City to give us a valid address or telephone number for the witness. Finally, we made a motion to the trial judge and asked that this witness not be permitted to testify at the trial. At oral argument, the City conceded that they, too, were unable to reach the witness. The judge ruled that the prisoner would not be permitted to testify at the trial because it was the City's obligation to provide a valid address and/or telephone number in a timely manner, which the City never did.
On the eve of trial, the City also informed us that they would be calling as a witness, the police officer who was the front seat passenger. Up until this time, the City of New York never indicated that the front seat passenger was a witness to the accident. Furthermore, he was never listed as a witness on either the police accident report or on the reports of the Police Department internal investigation which is always conducted when a police motor vehicle is involved in an accident.
Another discrepancy in this case was the testimony of the driver of the unmarked police vehicle. The officer testified that there were skid marks made by our client's car from the beginning through the entire intersection. Our client denied that there were any skid marks. The police accident report noted skid marks only before the intersection. The internal investigation reports did not mention any skid marks. The police internal investigation team took photographs of the two cars involved in the accident. However, there were no photographs taken of the pavement or of the skid marks purportedly made by our client's vehicle.
As it turned out, this case settled after we finished selecting a jury which took five (5) days to complete. It would have been interesting to see what the jury would have thought of the front seat passenger's testimony when asked why he never mentioned to any of the investigating officers that he was a witness to the accident. Also, it would have been interesting to hear the testimony of the sergeant who supervised the internal investigation as to why photographs were only taken of the two vehicles but not of the skid marks in the roadway as claimed by the driver of the police vehicle and why there was no mention of skid marks anywhere in the police internal investigation reports. To make this case study complete, there was no offer of settlement until after the fourth day of jury selection. After we completed jury selection and were about to start trial, the City tripled its offer. We can only assume that City felt that the jury would have been more impressed with our client's testimony rather than the testimony of the various police officers. The case was settled on January 10, 2011. Supreme Court, Kings County, Duncan v. City of New York, et al., Index No. 16570/07.