In this action, the plaintiff's claims arise from a motor vehicle accident that occurred on October 25, 2004 wherein the plaintiff alleges that his vehicle was "cut off" by a vehicle driven by the defendant forcing him off the road where he sustained serious injuries.

The defense seeks an in limine ruling from this court wherein the defense asks the court to prevent any testimony at trial from an independent eyewitness proffered by the plaintiff who would testify that, less than one month prior to the subject accident, the defendant drove up next to the plaintiff's vehicle and similarly "cut off" the plaintiff's vehicle causing him to swerve to the left to avoid a collision.

A general rule of evidence, applicable to both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that she did a similar act on a different unrelated occasion(see, Richardson, Evidence [10th Edition],§ 170,184). Certain exceptions to this rule have been recognized where the evidence offered has some relevancy to the issues presented other than mere similarity.

In the case at bar, plaintiff contends that the evidence of the prior alleged incident should be admitted under two of those exceptions; intent or common scheme or plan; however, contrary to the plaintiff's arguments neither exception applies here.

Where guilty knowledge or a wrongful intent is in issue, evidence of other similar acts is admissible to negate the existence of an innocent state of mind. The focus in such circumstances is "not on the actual doing of the act, for the act is either conceded or established by other evidence. Rather, the element in issue is the actor's state of mind, and the evidence of other similar acts is admitted under the exception because no particular intent can be inferred from the nature of the act committed"( Matter of Brandon's Estate, 55 NY2d 206). This is not the situation in the case at bar. Here, it is the doing of the act itself which is in issue. Plaintiff claims that he was cut off and the defendant denies it entirely; denies that she was in any way involved with the incident. The evidence of an alleged prior similar act would be offered to prove the act, in violation of the general rule. It is no different than were the plaintiff to attempt to prove that a defendant ran a red light by seeking to admit evidence that the same defendant ran a red light on a prior occasion. Clearly inadmissible.

Similarly unavailing on these facts is the common scheme or plan exception. While under this exception similar acts are offered to prove that the person did the act in issue (2 Wigmore § 304, at p 249), "mere similarity of acts is an insufficient predicate for admissibility" (Matter of Brandon's Estate, supra). There must be such a clear concurrence of common features that the acts can naturally be explained as part of an overriding general plan. In the absence of such a clear connection between the collateral act and the act in issue, the evidence should be [*2]excluded (Matter of Brandon's Estate, supra).It is in essence a far more stringent requirement for admissibility, a far higher bar, than that for the intent exception. As Professor Wigmore explains, " the clue to the difference is best gained by remembering that in the one class of cases the act charged is assumed as done, and the mind only asks for something that will negative innocent intent, but where the very act is the object of proof, and is desired to be inferred from a plan or system, the combination of common features that will suggest a common plan as their explanation involves so much higher a grade "( 2 Wigmore Evidence[Chadbourn rev ed], § 304, p 251). Applying these principles to the case at bar, the prior alleged incident is clearly inadmissible. There is little , if any , evidence that these events, if they occurred, were anything other than separate incidents "as the occasion arose" ( Matter of Brandon's Estate, supra), and not in pursuance of any preconceived general plan or design to run plaintiff off the road( see, Coopersmith v. Gold, 223 AD2d 572, affd 89 NY2d 957; Hand v, Stanper Food Corp. 224 AD2d 584; Kourtalis v. City of New York, 191 AD2d 480). Accordingly, the defense application for an order of preclusion is granted.This shall constitute the decision and order of the court.DATED: July 18, 2011HON. JOSEPH C. PASTORESSA