Plaintiff v Driver

Supreme Court, Kings County

Decided on June 9, 2026

Index No. XXXXX

Aaron D. Maslow, J.

Introduction

Defendant transportation network company ("TNC") has moved in limine for an order to compel the individual Defendant (driver) to appear in court as a witness.

Background

This matter arises out of a motor vehicle collision that occurred in Brooklyn seven years ago. Plaintiff claimed she was a passenger in a vehicle operated by her husband which was struck by another vehicle owned and operated by the individual Defendant, who was logged in to a TNC's app. Plaintiff sued and Defendant TNC denied allegations in the complaint that it was vicariously liable for any negligence on the part of the individual Defendant (driver). Summary judgment was awarded to Plaintiff against the individual Defendant (driver), and the Court was assigned to conduct the trial, which has begun on the issue of the vicarious liability of the TNC.

Defendant TNC's Contentions

Defendant TNC argued in support of compelling the individual Defendant to appear as a witness in court to deliver live testimony in front of the jury. Defendant TNC referenced a note that the Court received from the individual Defendant's doctor — submitted by the individual Defendant's counsel — indicating that the individual Defendant is undergoing treatment for Stage [*2]4 cancer and, therefore, is only available to testify on Zoom rather than in person. However, Defendant TNC argues that this note is not proof of unavailability because the note makes it explicit that the individual Defendant is in fact available by Zoom. Furthermore, Defendant TNC argues that the doctor's note does not indicate how long the individual Defendant is unavailable, information which is required. Defendant TNC states that counsel has a right to cross-examine the individual in front of the jury so that the jury can weigh credibility, which the jury would not be able to do merely by hearing someone else read from a transcript of the individual Defendant's deposition.

Individual Defendant's Contentions

Counsel for the individual Defendant argued in opposition to Defendant TNC's motion in limine by sharing the results of his research on the side effects of the chemotherapy treatment his client is receiving per the doctor's note. The side effects include nausea, fatigue, reduced immune system, and mental fugue resulting from chemotherapy treatments. Thus, the individual Defendant argued that he is unavailable to deliver live or virtual testimony, and he asked the Court to allow parties to read from his deposition transcript in lieu thereof.

Plaintiff's Contentions

Plaintiff argued in opposition to Defendant TNC's motion in limine despite Plaintiff having originally called the individual Defendant as a witness. Plaintiff did not ask the Court to compel the individual Defendant's appearance in Court. Plaintiff argued it would be "inhumane" to compel the individual Defendant's appearance in Court due to his medical condition. Plaintiff further argued that Defendant TNC's argument is "disingenuous" because it has also moved to preclude Plaintiff from questioning the individual Defendant about his contract with Defendant TNC. The contract is the only subject which Defendant TNC could confront the individual Defendant with.

Discussion

Court's Exhibit I is the aforementioned doctor's note:

To Whom it May Concern,

[The individual Defendant] is a patient under my care for management of Stage IV Non-Small Cell Lung Cancer. He is receiving chemotherapy and targeted therapy for his cancer. Because of this he must come to my office every 3 weeks for chemotherapy and take a daily tablet. Given this, and side effects from treatment, we request he be able to participate in his court case via Zoom or other teleconference.

"The law is clear that a trial court does not have to leave it up to the jury to determine if a party's explanation for not calling a witness is sufficient. Rather, the court may make that determination on its own (see People v Rodriguez, 38 NY2d 95, 101)." (Byczek v City of New York Dept. of Parks, 81 AD2d 823, 824 [2d Dept 1981].)

In Minick v Liquid Air Corp. (240 AD2d 477 [2d Dept 1997]), the defendant requested a [*3]missing witness charge based on the absence of the plaintiff's brother, William. The plaintiff opposed the request and submitted a doctor's note establishing that William was undergoing kidney dialysis treatment at the time of trial and, therefore, was unable to appear in court. The trial court granted the defendant's request for the missing witness charge, holding that the plaintiff could not proffer his explanation for William's absence to the jury. However, the Appellate Division held that the trial court erred because it "precluded the plaintiff from offering an explanation for William's absence to the jury" (Minick v Liquid Air Corp., 240 AD2d at 478).

Applying the above cases to the facts of this case, the Court considers the note from the individual Defendant's doctor. The Court has the authority to determine the individual Defendant's availability without leaving it up to the jury. The Court finds that due to the individual Defendant's treatment, which can be quite debilitating from side effects, referred to by his doctor, the individual Defendant is unavailable to appear in court. The Court deems testimony by Zoom to be logistically challenged and, in any event, the individual Defendant should not be subjected to the strain of testifying under any circumstances. CPLR 3117 provides for contingencies such as these, to wit, the reading of a witness's disposition testimony.

Conclusion

It is hereby ORDERED that Defendant TNC's motion in limine for an order compelling the individual Defendant to appear in court as a witness is denied as follows:

(1) The Court shall not compel the individual Defendant to appear in court as a witness or testify virtually via Zoom.

(2) In lieu of the individual Defendant's live testimony, the Court shall allow parties to read from the transcript of his deposition.

HON. AARON D. MASLOW

Justice of the Supreme Court of the State of New York