Tuesday, October 27, 2015


Question posed yesterday - if the matter is not a matrimonial, not a criminal action - what are the rules?

DELMARIE QUINONES, an Infant, by Her Mother and Natural Guardian, DELMA ALCANTARA, et al., Plaintiffs, v. CLIFTON CABALLERO et al., Defendants.10 Misc.3d 486 , 802 N.Y.S.2d 831 (Brnx. Co. 2005):

"V. The Child Witness

Plaintiff Quinones was 12 years old when she testified, recalling events when she was 10½ years old. To rely on a 12-year-old minor's testimony, the court must find she had sufficient capacity and intelligence, not only to comprehend the nature and obligations of the oath she took at her deposition, but also to recall and give an accurate account of what she saw or heard concerning the material events or circumstances she was questioned about. (People v Parks, 41 NY2d 36, 45 [1976]; People v Singleton, 284 AD2d 249 [1st Dept 2001]; People v Taylor, 244 AD2d 152, 153 [1st Dept 1997]; People v Bunche, 235 AD2d 271, 272 [1st Dept 1997].) Competency determinations, at least where the child witness is a complainant testifying against a defendant in a criminal action, rely on the trial court's opportunity to observe the witness, her demeanor and presence of mind, and undertake inquiries that disclose her capacity and intelligence. (People v Parks, 41 NY2d at 46; People v Taylor, 244 AD2d at 153.) "Impressions that may be validly drawn only from closehand personal observation cannot be 'photographed into the record' for later study." (People v Parks, 41 NY2d at 46.)

Against this authority, may the court in the context of summary judgment motions rely on a minor's testimony, already sworn, without actually observing the witness and conducting an independent inquiry to determine her competency? To rely on the minor's testimony as defendants seek, for purposes of granting them summary judgment and dismissing plaintiffs' action, obviously will preclude the trial judge from making this determination for purposes of the trial.

For purposes of the pending dispositive motions, plaintiff Quinones already was sworn and testified, without plaintiffs' or any other party's objection. While objections to a witness' competency are not waived by the failure to pose them before or during her deposition as she responded to questions (CPLR 3115 [d]), the action is now at a potentially dispositive juncture. Neither at the deposition, nor in the context of these motions, have plaintiffs or any other party raised any question, based on the opportunity for "closehand observation" they had at the deposition, that the minor did not have the capacity or intelligence to understand and respond to any question posed or to recall and accurately recount material facts. (People v Parks, 41 NY2d at 46.)

The context here departs from the authority governing criminal trials in critical respects. A deposition upon oral questions is not a discovery device in criminal actions (e.g., CPL 240.20), so there is no opportunity before the trial for "closehand observation" of a child witness and scrutiny of her capacity and intelligence. (People v Parks, 41 NY2d at 46.) Here, although the court had no such opportunity except study of the transcript and corroborating or conflicting evidence, the parties had a thorough opportunity. Concomitantly, there is no analogy in criminal actions to the summary dispositions upon admissible evidence, routinely sought, and for which the parties therefore must be prepared, in civil actions.

In addition, while one side, here defendants, seeks to rely on the minor's testimony against the other side, unlike the prosecution relying on its complaining witness as an accuser against the other side, defendants rely not on their own witness, but on the other side's own witness, plaintiff Quinones. Most critically, and perhaps the explanation for plaintiffs' reluctance to raise a competency issue, if plaintiffs are to prevail, they must rely on the minor's testimony as well. Although her mother, plaintiff Alcantara, was present for the material events, neither side has found her recollection and account sufficiently useful to rely on her, despite her capacity as an adult, to support the parties' positions. Hence the minor is the witness on whom all parties must rely if they are to establish their claims or defenses.

Keeping the age of the key witness foremost in mind, the court finds no hint in the record that she was confused by the questions posed to her or had any difficulty expressing her recollection of the material events or her intended meaning. Nothing in the plaintiff mother's testimony or anywhere else in the record is in any way inconsistent with or otherwise casts any doubt on the certainty of the minor plaintiff's testimony. (See Totan v Board of Educ. of City of N.Y., 133 AD2d 366, 369 [2d Dept 1987].) In fact the mother corroborates both that the snow was "spread" over the part of the sidewalk where her daughter fell (affirmation of David Holmes, exhibit G, at 17), and that "more snow" had fallen "on top" of the snow that had been shoveled and salted. (Id. at 20.) This careful scrutiny provides assurance even where no issue was raised regarding the daughter's competency.

In these circumstances, in the context of summary judgment motions, where the parties against whom a minor's testimony is used raised no objection to the testimony and also must rely on it, the court, after scouring the record for uncertainty in the testimony and finding none, may rely on a sworn 12 year old's account, without her appearance and further examination. Consequently, based on the admission that no shoveling was observed in the area where plaintiff Quinones fell and that no additional salt had been spread there since she had walked there hours earlier, the Caballero defendants, at least, establish defendants' freedom from liability."

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