Another Victory for the SACS Appellate Group With Significant Repercussions For The New York Bar On Disclosure/Discovery Issues
Congratulations to the SACS appellate group for its victory in the notorious Bermejo case. Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d 116 (2d Dep’t 2015). In an appeal principally drafted by Tim Capowski, the Second Department adopted all of our arguments practically verbatim and issued a highly unusual and lengthy 36-page decision criticizing the trial judge and plaintiff’s counsel. The Second Department also sanctioned plaintiff’s counsel by awarding the two defendants the costs of the mistrial, motion practice and appeals (a figure that could potentially exceed $200,000). As the decision recites in excruciating detail, plaintiff’s counsel engaged in significant misconduct in surreptitiously video recording a defense examination of plaintiff on his iPhone without court permission, failing to disclose the recording pursuant to CPLR 3101(i), and having a witness intentionally bring up the existence of the video in front of the jury in scripted fashion. On a separate note, the Court blasted the trial court for conduct that must be read to be fully appreciated. This decision has significant repercussions on multiple aspects of discovery/disclosure practice.