It “is unfair to prevent a defendant from putting a plaintiff to his proof by precluding the defense from presenting facts material to the accurate assessment of damages.” Angamarca v. New York City Partnership Housing Development Fund, 87 A.D.3d 206, 927 N.Y.S.2d 2 (1st Dept. 2011) (Tom, J., dissenting).
With this sharp dissent, Justice Peter Tom of the Appellate Division, First Department, took issue with the majority’s upholding of the preclusion of evidence of an undocumented alien’s plans to return to his country after trial.
