| Cheathem v Ostrow |
| 2012 NY Slip Op 07949 [100 AD3d 819] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Felicia Cheathem, Respondent, v Stephen Ostrow et al.,Appellants. |
—[*1] Bergstein & Ullrich, LLP, Chester, N.Y. (Stephen Bergstein of counsel), forrespondent.
In an action, inter alia, to recover damages for sexual harassment, the defendants appeal froma judgment of the Supreme Court, Orange County (McGuirk, J.), dated March 27, 2009, which,upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $25,000.
Ordered that the judgment is affirmed, with costs.
CPLR 3117 permits the use of an adverse party's deposition for any purpose (seeCPLR 3117; Feldsberg v Nitschke, 49 NY2d 636, 640 [1980]). Additionally, CPLR 4515permits the introduction of a prior inconsistent statement sworn or subscribed by the witness forpurposes of impeachment (see CPLR 4515; Feldsberg v Nitschke, 49 NY2d at644 n 2). However, "[a] trial court is not without power to ensure the orderly and fairadministration of justice merely because a particular item of evidence is technically admissible.Although there exist general rules for the conduct of trials, deviation from these rules may benecessary to fit the circumstances of a particular case" (Feldsberg v Nitschke, 49 NY2d at643). "[T]rial courts retain their discretionary power to control the trial and to 'avoidunnecessarily protracted or confusing presentation of evidence' " (Dank v Sears Holding Mgt. Corp., 93AD3d 627, 628 [2012], quoting Feldsberg v Nitschke, 49 NY2d at 643).
Here, the Supreme Court providently exercised its discretion in precluding defense counselfrom using the plaintiff's deposition testimony to impeach a portion of her trial testimony. Attrial, the plaintiff testified that her employer, the defendant Stephen Ostrow, required her to playthe game "Simon Says," and that during this game, he instructed her to hop on one foot andexpose her bare chest to him. Although the plaintiff did not testify about this event during herdeposition, the plaintiff was not asked in her deposition whether she testified to every allegedinstance of sexual harassment. Under these circumstances, the use of the plaintiff's depositiontestimony to impeach this portion of her trial testimony would have been confusing and unfairlyprejudicial, and the Supreme Court properly precluded defense counsel from doing so (seeDank v Sears Holding Mgt. Corp., 93 AD3d at 628). Dillon, J.P., Leventhal, Austin andMiller, JJ., concur.