Though Precluded from Testifying at Trial, Third-Party Defendant Can Be Called to Testify by Plaintiff

Case: Denn v. Hardwick

Court: Supreme Court, Appellate Division, Second Department, New York

Date: 7/11/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident attorney)

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Facts: This accident lawsuit appeals decision deals with procedural issues. Plaintiff sued someone for his injury. That party sued, the defendant, then sued another party claiming, in essence, that this third party (known as a "third-party defendant") was responsible to it for plaintiff's injury, if it, the defendant/third-party plaintiff, was responsible for the plaintiff's injury.

The defendant/third-party plaintiff moved to punish the third-party defendant for filing to appear for deposition. As a sanction (penalty) the court struck the third-party defendant's answer to the third-party complaint, handing the third-party plaintiff a default against the third-party defendant.

Following me so far?

When asked in a second motion to reconsider its decision, the lower Court decided that its striking third-party defendant's answer was too harsh. Instead, third-party defendant was precluded (prevented) from testifying at trial.

Plaintiff says, "Whoa. Wait a minute." Plaintiff needs the testimony of the third-party defendant to testify at trial so plaintiff can make out his own case for this accident and injury. So plaintiff makes a motion, asking the Court to clarify its prior decision to say that third-party defendant can be called to testify at trial by plaintiff, in support of plaintiff's case.

The lower court held, "Yes. I really meant precluded." Third-party defendant can't testify. Period.

Plaintiff, feeling this was unfair, took this appeal.

Held: Precluding third-party defendant from testifying at trial would unfairly punish plaintiff, who is innocent as regards third-party defendant's bad behavior. Plaintiff can call third-party defendant to testify at trial.

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