On June 10, 2022, Justice Odorisi of the Seventh Judicial District Commercial Division issued a decision in Tra-Mac Bldrs., Inc. v. Borrelli, 2022 NY Slip Op. 32579(U), precluding the use of documents to impeach a witness on collateral issues, explaining:
Plaintiffs seek to preclude Tom’s cross-examination to bar the use of extrinsic evidence of various misdeeds, such as: a Decision and Order from retired Justice Kenneth Fisher; and, proof that he forged his parents’ signatures. Defendant does not object to the motion relief precluding those documents from being admitted into evidence, but insists she can quote from Justice Fisher’s Decision in her cross-examination to show that he has a pattern of creating false records for litigation purposes. Plaintiffs reply that any citations to outside materials is improper.
Plaintiffs are entitled to their motion relief. As in Huff, Defendant’s expected cross-examination of Tom cannot include quotes from collateral items, or their introduction into evidence. . . .
To get prospective evidence/questions excluded in the case at hand, Plaintiffs invoke the Molineux rule. That rule – which was created by the criminal case People v. Molineux, 168 NY 264 (1901) – applies to civil proceedings. This rule, which normally excludes evidence of prior bad acts, is not absolute. The first step is to consider is whether the proof falls within an exception, about which the Court of Appeals has decreed that:
Attempts to categorize situations in which evidence of prior crime is admissible have yielded Molineux’s well-known listing f (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) the identity of the person charged but even that listing is acknowledged to be merely illustrative and not exhaustive.
If the subject bad act qualifies as an exception, the next step is to weigh the degree of probativeness against the potential for prejudice.
The nature and extent of cross-examination is entrusted to the trial court’s discretion. As to impeachment measures, the
Court of Appeals has decreed that:lt is, of course, the general rule that a witness may be cross-examined with respect to specific immoral, vicious or criminal acts which have a bearing on the witness’s credibility. While the nature and extent of such cross-examination is discretionary with the trial court, the inquiry must have some tendency to show moral turpitude to be relevant on the credibility issue.
A cross-examiner is bound by the answers of the witness to questions on collateral matters inquired into solely to affect credibility, and extrinsic evidence cannot be used to impeach a witness’s credibility after the witness has provided an answer with which the cross-examiner is unsatisfied.
Here, and as credibility is going to be key to the jury’s final resolution, this Court declines to limit all impeachment questions beforehand. As Plaintiffs acknowledge, questions about prior acts of untruthfulness are permissible, but without statements from, or reference to, outside documents. Moreover, and under the collateral evidence rule, Tom’s answers to any line of inquiry must be accepted and cannot be refuted by calling other witnesses or by producing extrinsic evidence. However, and should Tom not recall certain events, his memory can be attempted to be refreshed with those items, but without reading anything into the record.
In all, Plaintiffs are awarded their preclusion relief.
(Internal quotations and citations omitted).