I think all trial lawyers will agree that there are times when courts’ strict adherence to evidentiary rules works an injustice to one party or the other. I came across just such a case recently and the case, Kaufman v. Quickway, 64 AD3d 978 (2009), is the subject of this column. The rule involved is simple and well established: a witness’ prior inconsistent statement may only be used to impeach that witness. It may not be offered as evidence in chief to prove a fact in issue.
While readers of this article may recall that there have been several cases from the Court of Appeals that seemed to chip away at the rule—most significantly the case of Letendre v. Hartford Ins., 21 NY2d 518 (1968), which I will discuss below—a recent Appellate Division, Third Department, case refused to follow the “trend.” In my opinion, the Kaufman decision provides a very good illustration of why the rule needs to be re-evaluated. In that case, the defendant moved for summary judgment. Justice Michael Coccoma denied the motion holding that certain triable issues were raised in the moving papers. The defendant appealed.
Issues in ‘Kaufman’
