Bellegarde v Singh

Supreme Court, Kings County

Decided on May 18, 2026

Index No. 506576/2020

Aaron D. Maslow, J.

Background

In this action, plaintiff Vladimir Bellegarde alleges personal injuries resulting from a motor vehicle accident which took place on October 18, 2019. He maintains that he was operating his car, while driving northbound in the left lane on Rogers Avenue in Brooklyn. He alleges that defendant Mangal Singh, operating a truck owned by defendant Premier Construction, Inc., tried to make a left turn onto Sterling Place and in the process struck the passenger side of his car.

At defendant Singh's deposition, he testified to a different version of the events — that it was he who was in the left lane and was attempting to make a left turn onto Sterling Place when plaintiff [*2]Bellegarde came from behind into the left lane and, in trying to drive past Singh, struck Singh's truck.

The deposition is the subject of a motion in limine by defendants, who seek an order as follows: "The Plaintiff is precluded from introducing the Defendant's deposition testimony concerning the accident at trial" (NYSCEF Doc No. 60 at 1). Plaintiff Bellegarde's car had a dashcam and it recorded video footage of the accident. Plaintiff Bellegarde did not exchange the dashcam video recording until after defendant Singh's deposition took place. Defendants acknowledge that the video recording is inconsistent with that testified to by defendant Singh. If defendant Singh had the benefit of the video, his deposition testimony might have been different. Therefore, argue defendants, plaintiff Bellegarde should not be permitted to read into the record Singh's deposition testimony, which contradicts the video.

Defendants argue, "At trial, Plaintiff should not be permitted to benefit from a tactical advantage created by its own discovery violation of withholding the dashcam footage until after Defendant's deposition, and then attempting to use the purported inconsistencies between the footage and the Defendant's prior deposition testimony at trial" (NYSCEF Doc No. 61 ¶ 4).

Plaintiff counters that there was no willfulness in the delay in producing the dashcam video and that its existence was made known to defendants prior to defendant Singh's appearance at this deposition. Therefore, plaintiff argues that he should be permitted to read from defendant Singh's version of what transpired, especially since Singh will not be present at the trial.^FN1

Discussion

CPLR 3102 (a) provides in pertinent part, "There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party. . . ." CPLR 3101 (i) provides in pertinent part, "In addition to any other matter which may be subject to disclosure, there shall be full disclosure of any films, photographs, video tapes or audio tapes, including transcripts or memoranda thereof, involving a person referred to in paragraph one of subdivision (a) of this section. There shall be disclosure of all portions of such material, including out-takes, rather than only those portions a party intends to use."

"[T]he deposition testimony of a party . . . may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested when the deposition testimony is offered in evidence" (CPLR 3117 [a] [2]).

Defendants rely principally on Pizzo v Lustig (216 AD3d 38 [2d Dept 2023]), an opinion written by Hon. Justice Mark C. Dillon. In that case, also concerning a motor vehicle accident, plaintiff served a notice of discovery and inspection on January 11, 2019, demanding, inter alia, video tapes. On January 28, 2019, the Supreme Court executed a preliminary conference order requiring, all parties to, among other things, exchange surveillance tapes within 30 days. On February 7, 2019, defendant's insurer retained a company to conduct surveillance of the plaintiff. Nine seconds of initial surveillance footage of the plaintiff were obtained on either February 15 or February 19, 2009. On September 27, 2019, the Supreme Court issued an order at a compliance conference directing that the parties respond to outstanding documentary discovery demands by October 28, 2019. The first portion of the plaintiff's deposition was conducted on November 20, 2019. On January 24, 2020, the Supreme Court issued a final [*3]pre-note of issue order; it did not reference surveillance videos. The plaintiff's deposition continued on March 4, 2020. The mid-February 2019 surveillance video was not disclosed or otherwise raised prior to or during either of the plaintiff's two deposition appearances. On March 4, 2020, after the plaintiff's deposition had fully completed, the surveillance company obtained more footage. Further surveillance footage was successfully obtained on June 25, 2020; July 14, 2020; and December 16, 2020.

On March 17, 2021, the defendant in Pizzo and prior to the filing of any note of issue, the defendant served a disclosure of all the surveillance videos; this was after the plaintiff moved for summary judgment on January 27, 2021. The plaintiff moved again, this time to preclude the defendant's use of the surveillance videos. The Appellate Division held that use of the video surveillance footage obtained by the defendant prior to the plaintiff's deposition was to be precluded, but not the footage obtained afterwards. The Court noted that "courts do not favor trials by ambush" (216 AD3d at 45). CPLR 3101 (i), which referred to video tapes, was enacted by the Legislature in 1993, following a Court of Appeals' decision on the issue in DiMichel v South Buffalo Ry. Co. (80 NY2d 184 [1992]), which held that surveillance videos did not have to be disclosed prior to a plaintiff's deposition. CPLR 3101 (i), providing for disclosure of video tapes, however, did not set a deadline. In Tai Tran v New Rochelle Hosp. Med. Ctr. (99 NY2d 383 [2003]), the Court of Appeals held that plaintiffs could demand and receive video footage prior to their depositions, thus overruling DiMichel, which had held to the contrary.

Justice Dillon reasoned that the disclosure of the pre-deposition surveillance in Pizzo was willful and strategic given the defendant's noncompliance with the plaintiff's discovery notice and two court orders. Preclusion of the pre-deposition video was directed. Justice Dillon found no fault with the Supreme Court's determination not to preclude the post-deposition footage.

Defendant Singh herein also relies on Larue v 1201-31 Lafayette Ground Owner LLC (243 AD3d 525 [1st Dept 2025]), in which the Court found that the defendants acted willfully and contumaciously when they failed to turn over video footage of the subject accident. "Defendants failed to produce the video in response to repeated explicit demands and repeatedly denied the existence of any video of plaintiff's accident. It was not until after plaintiff's deposition on May 20, 2024, and during the June 27, 2024 deposition of defendants' building manager that defendants revealed the existence of the video. While only six months elapsed from entry of the compliance order to the belated production of the video, it cannot be said that plaintiff was not prejudiced by the late production. Defendants should be sanctioned for their dilatory behavior in producing the surveillance video after plaintiff's deposition had already taken place. . . ." (Id. at 525.) Preclusion of the video was directed by the Appellate Division.

In Cardona v GVS Properties IV LLC (2023 WL 5667375 [Sup Ct, Queens County 2023]), surveillance video was obtained by the defendant approximately three years before the plaintiff's deposition, approximately two years after the plaintiff served his discovery demand and the preliminary conference order was issued, and approximately six months after a compliance conference order directing a response to the discovery demand, but exchanged with the plaintiff after his deposition. "As such, the production of the video surveillance evidence at issue herein was not compelled by plaintiff's earlier discovery demand, nor the preliminary and compliance conference orders, and therefore defendant's failure to disclose the video surveillance evidence at issue herein until after plaintiff's deposition was neither willfully nor deliberately in contravention of a discovery demand or court order" (id. at *1).

Video footage of a sidewalk accident was not precluded in Varrone v SF IV LBH, LLC (2025 WL 3505607 [Sup Ct, Queens County 2025]). It was not disclosed prior to the plaintiff's deposition. Since relevant orders were not presented on the plaintiff's motion, the plaintiff failed to show that the [*4]defendants' repeated noncompliance with discovery orders was not established.^FN2

This Court gleans from the foregoing case law that automatic preclusion is not to be applied to a party who has failed to disclose pre-deposition video footage. Rather, the nondisclosure must be willful and contumacious. It is noted that in Pizzo, there were a discovery notice and two court orders and yet the pre-deposition footage was not disclosed until afterwards. This, held the Appellate Division, constituted willful and contumacious conduct.

Contrast the facts in the case at bar. On July 8, 2020, defendant Singh served a discovery notice which referenced video footage in NYSCEF Doc No. 6 ¶ 24. The preliminary conference order of January 5, 2021 (filed on January 7, 2021 as NYSCEF Doc. No. 10) directed that video recordings be exchanged by February 2, 2021. When plaintiff Bellegarde testified on June 10, 2021, he was asked if his vehicle was equipped with a dashcam and he answered that it was. He had not provided a copy of the video to his attorney and had to check whether he still had a copy. He had not viewed it. He also had not turned over to his attorney photos he took. (See Bellegarde trans at 40-48.) On June 17, 2021, in NYSCEF Doc No. 13, the defendants served a supplemental notice for discovery containing specific reference to the video capturing the accident from plaintiff Bellegarde's dashcam. Defendant Singh testified on July 16, 2021. The dashcam video was exchanged with the defendants on September 9, 2021.

Unlike in Larue, plaintiff Bellegarde did not repeatedly deny the existence of any video of the October 18, 2019 accident.

The dashcam footage was not intentionally withheld from defendants. It appears that plaintiff Bellegarde held onto it along with photos; he did not turn it over to his attorneys. This is distinct from the insurance company arranging for surveillance footage in Pizzo and not disclosing it. There were not two court orders in the instant case, unlike in Pizzo. Also, unlike in Pizzo, at the time the adverse party — defendant Singh — testified, he was aware, or should have been aware if his attorney informed him, that a video recording of the accident existed.

Further, this Court views surveillance footage of a defendant different from an accident video. A party surreptitiously recorded by an investigative agency is less likely to be aware that he is being observed and videoed with recording equipment. On the other hand, video cameras of streets are prevalent throughout New York City — both as dashcams and attached to stores, homes, and even sidewalk poles and lampposts. It is well known that the police frequently solve crimes by seeking out video footage of locations. It would be a naive driver who thinks that no footage exists of an accident.

Under these circumstances, the Court views the non-provision of the dashcam video footage here until nearly two months after defendant Singh's deposition to be neither willful nor contumacious. Further, it is not even the footage which defendants seek to preclude. They seek to preclude use of Singh's deposition by plaintiff Bellegarde. In essence, defendants claim that Singh was ambushed by not being shown the video before he testified so that his testimony could conform to it. Since his testimony apparently differs from what is depicted, defendants argue that plaintiff should be precluded from reading from it. The Court declines to punish plaintiff when Singh was involved in an accident and could have testified accurately to what transpired. He could even testify now to explain his deposition testimony, but he will not be at the trial. Preclusion of his deposition transcript is not warranted.

Conclusion

Accordingly, defendants' motion in limine to preclude plaintiff Bellegarde from reading defendant Singh's deposition transcript testimony is DENIED. This constitutes the Decision and Order of the Court.

Hon. Aaron D. Maslow

Justice of the Supreme Court of the State of New York