author: Bellacosa, J. Simons, J.

text:
    The People of the State of New York, Respondent, v Bac Tran, Appellant.
    Argued September 11,1992;
    decided October 27, 1992

      POINTS OF COUNSEL

      Traub & Traub, P. C., New York City (Doris G. Traub of counsel), for appellant.
    I. Section 200.00 of the Penal Law requires proof of a mutual agreement or understanding between the offeror of a bribe and the offeree, and the Trial Judge erred when he diminished the prosecution’s burden of proving that element of the crime in his instructions to the jury. (People v Harper, 75 NY2d 313; People v Arcadi, 79 AD2d 845, 54 NY2d 981; People v Alvino, 71 NY2d 233; People v Kramer, 132 AD2d 708, 72 NY2d 1003; People v Teitelbaum, 138 AD2d 647; People v Holmes, 72 AD2d 1; People v Bell, 73 NY2d 153.) II. The prosecution’s failure to provide prima facie proof of a conspiracy precluded admission of the taped hearsay statement of an alleged coconspirator. (Ormsby v People, 53 NY 472; People v Malagon, 50 NY2d 954; People v Bell, 48 NY2d 913; People v Ardito, 86 AD2d 144, 58 NY2d 842; People v Piazza, 48 NY2d 151; People v Cleague, 22 NY2d 363; People

      v Kohn, 251 NY 375; People v Salko, 47 NY2d 230; People v Sanders, 56 NY2d 51; People v Alwadish, 67 NY2d 973.)

      Robert M. Morgenthau, District Attorney of New York County, New York City (Birgit E. Kollmar and James M. McGuire of counsel), for respondent.
    I. The phrase "upon an agreement or understanding” in the bribery statutes does not require a bilateral agreement, but instead refers to defendant’s intent. (People v Alvino, 71 NY2d 233; People v Teitelbaum, 138 AD2d 647; People v Schwimmer, 66 AD2d 91, 47 NY2d 1004; People v Berkowitz, 50 NY2d 333; People v Bell, 73 NY2d 153; People v Graham, 57 AD2d 478, 44 NY2d 768; People v Grossman, 145 Misc 781; People v Salomon, 212 NY 446; People v Kramer, 132 AD2d 708, 72 NY2d 1003.) II. The People established by independent evidence a prima facie case of conspiracy between defendant and Han Chu; accordingly, Han Chu’s declaration that the bribe paid to Investigator Schatz was from defendant was properly admitted into evidence under the coconspirator exception to the hearsay rule. (People v Centano, 76 NY2d 837; People v Harrison, 57 NY2d 470; People v Alwadish, 67 NY2d 973; People v Salko, 47 NY2d 230; People v Sanders, 56 NY2d 51; People v Berkowitz, 50 NY2d 333; People v Halpin, 71 AD2d 659; People v Malagon, 50 NY2d 954; People v Liccione, 63 AD2d 305, 50 NY2d 850.)
   OPINION OF THE COURT

Bellacosa, J.

This prosecution stems from two separate incidents of alleged bribery by defendant of a municipal fire safety inspector and an undercover investigator. The amounts involved, $310 and $100, are relatively petty. However, the object of these municipal-corruption-type crimes — official disregard of fire safety violations in two Manhattan hotels — is potentially very grave.

The appeal by a grant of leave from a Judge of this Court is from an Appellate Division order afiirming the conviction on both bribery counts after a jury trial. Two primary issues are presented. The first, which the People concede is an open question, is whether the key phrase "agreement or understanding” in Penal Law § 200.00 means only "intent to influence”, or whether its plain language imposes on the People the requirement to prove something more than simple intent. Because we acknowledge and give effect to the Legislature’s addition of a new "gist” (People v Harper, 75 NY2d 313, 317) to the statute that is distinct from simple intent, we must also determine whether the People presented evidence sufficient to avoid dismissal of the charge irrespective of error in the instruction to the jury on this point.

The second count of the conviction against defendant implicates the separate legal issue of whether the People presented independent prima facie evidence of a conspiracy justifying use of a coconspirator’s recorded hearsay evidence against defendant. We conclude that no prima facie proof of a conspiracy was made out at any time during the trial warranting admission of the recorded hearsay statements of the alleged coconspirator. The order of the Appellate Division should be reversed and both counts of bribery in the third degree should be dismissed.

Defendant, Tran, was the fire safety director of two Manhattan hotels with outstanding fire safety violations. On February 2, 1989, an inspector from the New York City Department of Buildings inspected the Carter Hotel. The inspector told defendant that a new violation would be reported. Defendant then put $310 into the shirt pocket of the inspector, who immediately removed the money and said he could not accept it and that the violation would still be reported. The inspector testified that defendant told him to keep the money "even if [he] wrote a violation,” and "do whatever [he] had to do, but keep [the money].” The inspector left and promptly turned the money over to the New York City Department of Investigation, Inspector General’s office. That is the whole of the People’s evidence on count one.

On March 16, 1989, an investigator from the Department of Investigation, Inspector General’s office, went to the second hotel, the Longacre, posing as an inspector from the Department of Buildings. After appearing to conduct an inspection, the investigator informed defendant that the hotel had failed to meet certain legal requirements. He also told defendant that he wanted to help him out but was obliged to report the violation. He added that he would hold off writing the violation for the rest of the day because he had other places to go. Defendant said and did nothing in response. When the investigator said he would return later but would telephone first, defendant urged him to return even if defendant was not available. Defendant was not present when the investigator returned. Instead, a hotel employee, Chu, who had been present when the investigator was there earlier, asked the investigator to wait for defendant. When the investigator said he could not wait, Chu gave him a $100 bill. By means of the investigator’s hidden tape recorder, the entire dialogue between the investigator and Chu was captured. A portion of the tape recording reflects that when the investigator asked what the $100 was for, Chu replied: "I don’t know. Maybe, you clear up for him something here, about Local Law 16. That’s what your here before [as in transcript].” Chu said she would tell defendant to call the investigator, but no further contact was made among any of the participants.

Defendant was subsequently charged with two counts of bribery in the third degree, one as to each incident. At the jury trial, defendant objected to the admission of the taped hearsay statements of Chu, claiming that a prima facie case of conspiracy had not been presented or proven and, absent that, the hearsay statements could not be admitted under the coconspirator exception. The trial court allowed the People to play the full tape recording of the conversation between the investigator and Chu, including both hearsay and verbal act statements, expressly reserving its decision on defendant’s objection.

Following the close of the People’s case, defense counsel moved to dismiss both counts for failure of proof. The trial court denied the motion, stating that while there was no "agreement,” there may have been an "understanding,” and that the presence or absence of an understanding constituted an issue of fact for the jury. The court further indicated that an "understanding” could consist of an "expectancy * * * that hopefully [the inspector] would not file” the violation. The defense presented no evidence at trial.

The trial court instructed the jury that the words "upon an agreement or understanding” refer to the defendant’s understanding. The court added that those words "as applied to this case, are equivalent to the words, 'with intent to.’ ” The court defined intent to mean: "to have a conscious objective to cause a result or engage in the conduct or act with which the defendant is charged.” Defendant took exception to the instruction.

While the jury was deliberating, it reported to the court that it had reached a verdict solely with respect to the first count. The court, on the record but not to the jury, indicated that there was insufficient evidence of a conspiracy to render admissible the objected-to taped statement and, as a result, it would set aside any guilty verdict rendered on the second count of the indictment. It nevertheless urged the jury to continue deliberations and was persuaded by the prosecutor to further reserve on the objection until the jury reached a verdict on the second count. The jury then returned a guilty verdict on count two. Defendant’s objection was then overruled and the motion to set aside the verdict was denied.

The Appellate Division affirmed the judgment of conviction (178 AD2d 247). Without commenting on the trial court’s charge to the jury, the Appellate Division concluded that "the evidence permitted the conclusion that defendant’s conscious objective was to influence the conduct of the officials with money, which on both occasions was delivered” (id.). The Appellate Division added that the disputed evidence was admissible under the coconspirator exception to the hearsay rule "since the evidence established a prima facie case of conspiracy independent of the statements” (id.).

I.

The crime of bribery in the third degree is committed when a person "confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced” (Penal Law § 200.00 [emphasis added]).

The statutory history hints at the significant distinction between "intent” and "agreement or understanding.” Predecessor statutes to Penal Law § 200.00, in effect, required only the intent to influence a public official in the exercise of the official’s powers. In 1965, as part of an extensive revision of the Penal Law, the Legislature removed the intent language and substituted the requirement of an "agreement or understanding.” The legislative history of the 1965 revision of Penal Law § 200.00 indicates that the bribery laws were "analyzed, re-appraised, condensed, regrouped and re-written” (Second Interim Report of NY Temp Commn on Revision of Penal Law and Grim Code [1963 NY Legis Doc No. 8], at 38), but that there was no intent to make "major substantive changes in existing law” (Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] art 205, at 371 [1964]). Of the five statutes which were consolidated into Penal Law § 200.00, three used the phrase "with intent to influence” (former Penal Law §§ 371, 378, 1822). Two others, former Penal Law §§ 465 and 1233, did not use the words "with intent to influence,” but kept the focus on the mental state of the bribe maker. In regrouping and rewriting these statutes as revised Penal Law § 200.00, the Legislature introduced the new core ingredient "upon an agreement or understanding.” While this language continued the focus on the mental state of the bribe maker, it signaled a new and different notion. The key element was changed on its face to something qualitatively and quantitatively higher than the long-standing, simple "intent to influence”. Whether it qualifies as a "major substantive change” (Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] art 205, at 371 [1964] [emphasis added]) is not the point. It is a substantive change. The dissent would ignore the change entirely, would extirpate from the statute the very words that we have said constitute the "gist of the crime” (People v Harper, 75 NY2d 313, 317, supra) and would rewrite its own preferred word, intent, into the statute as a synonym — which it is not — for the words the Legislature adopted.

Within that framework, we agree with the observation of the trial court that the statute disjunctively requires either a mutual "agreement” between the bribe maker and the public servant, or at least a unilateral "understanding” in the mind of the bribe maker that the bribe will influence the public servant’s conduct. The trial court ran into difficulty, however, when it then equated "agreement or understanding” with "intent” and, in effect, defined "unilateral understanding” as the functional equivalent of and no more than the traditional standby, intent. The three words are not synonymous. Under ordinary statutory construction, they cannot mean the same thing and must be given their nuanced intended effects. Under long-standing statutory interpretation rubrics, we may not ignore the Legislature’s switch in the nucleic words of this statute. Nor can we, by interpretation, strip a critical new word of its plain and intended meaning, rendering it useless or superfluous (see, Matter of Alonzo M. v New York City Dept, of Probation, 72 NY2d 662, 665-666; McKinney’s Cons Laws of NY, Book 1, Statutes § 231; see also, People v Dethloff, 283 NY 309, 315).

Having misconstrued the specific culpable mental state requirement for this defined crime, the trial court then failed to properly rule on the sufficiency of the People’s evidence. We conclude that the prosecution, to satisfy this indispensable element of the statutory prescription, had to prove at least an "understanding” — the Legislature’s word, not ours — in the mind of the bribe maker that the bribe receiver would effectuate the proscribed corruption of public process and was affected to do so by the actus reus of this particular crime. The prosecution utterly failed to satisfy that essential burden in this case.

While we have not previously construed the particular phrase in Penal Law §200.00, we have spoken to identical language in another section dealing with bribe receiving by a witness (Penal Law § 215.05). In People v Harper (75 NY2d 313, supra), because an agreement to "drop charges” against an assailant in exchange for money evinced nothing about the promisor’s intention to appear and testify truthfully in the event that the prosecutor decided to press the charge, we held that a statutory agreement or understanding was not proven. This Court pointedly said that "[t]he gist of the crime is not the payment of money, but rather the 'agreement or understanding’ under which a witness accepts or agrees to accept a benefit” (id., at 317, citing People v Arcadi, 79 AD2d 845, 846, affd on App Div 54 NY2d 981). To be sure, Harper and Arcadi have some differences compared to the instant case, but our analysis and articulation in those cases nevertheless help to buttress our interpretation here, despite the prosecutor’s characterization of the relevant references as mere nonauthoritative dicta.

Pertinently, the recommended pattern criminal jury instruction for Penal Law § 200.00 explains that if a benefit is offered or conferred with only "the hope that the public servant would be influenced thereby, then the crime of bribe giving is not committed” (3 CJI[NY] PL 200.00, at 1379 [Mar. 24, 1989]). That is precisely what happened in this case. Indeed, the trial court acknowledged that an "understanding” could be unilateral, but then diluted the force and meaning of the word by explaining that nothing more was necessary than the defendant’s hope that the benefit bestowed would induce a forbidden favor. A mere "hope” and a statutory "understanding”, in common parlance and in criminal jurisprudence, are miles apart.

We do not need to speculate on what the Legislature intended, for we are confronted with the best evidence of its intention in its new core words "agreement or understanding”. "[C]itizens are [not] free to offer cash to public officials” (dissenting opn, at 181) nor is this defendant declared "innocent” by our determination (dissenting opn, at 182). Ironically, the crime of attempted bribery, for example, either as a separate charge or lesser included count, may be proved when a prosecutor satisfies its burden of proof by a showing of only intent (see, Penal Law § 110.00). When a court concludes that the People have failed to satisfy their burden, "innocence” flows from our firmly and long-respected presumption of innocence until proven guilty.

We thus resolve the open statutory interpretation question by defining the disjunctive word "understanding” as at least a unilateral perception or belief by a perpetrator that the "public servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced” (Penal Law § 200.00). This does not at all, as the dissent misconstrues it, "hinge” on some "mens rea of the bribe-receiver” (dissenting opn, at 181).

Our interpretation of the statute requires that we next address defendant’s argument concerning his motion attacking the sufficiency of the proof adduced on the first bribery charge. When the trial court ruled in this regard, it not only diminished the correct level of the statutory phrase, it also overlooked the absence of any evidence whatsoever of an "understanding,” as we now definitively construe it, by this defendant on which the jury could return a guilty verdict. We have not injected a "novel” culpable mental state in this statute. The Legislature, as is its role, did that. In construing the Legislature’s word, we in our judicial role can say that the element of understanding can be satisfied unilaterally, but we cannot say as the dissent would that it can be something less than an understanding.

True, these cases are usually circumstantial and inferential; the underlying crimes are, after all, often perpetrated subtly with winks, nods and walks in the park. However, those difficulties cannot justify a deviation from the rigorous rules, especially for proof of all elements of a crime beyond a reasonable doubt. Here, there is no evidence from which any "understanding,” as required by the statute, can be attributed to the defendant. That is a classic failure of proof on insufficiency grounds requiring a quite ordinary and traditional dismissal of the criminal charge. Thus, the first bribery count should have been dismissed.

II.

The second count presents a distinct issue: whether the People presented a prima facie case of conspiracy as the sine qua non to the admission of recorded hearsay statements by an alleged coconspirator. The elementary governing principles are well known. A declaration by a coconspirator during the course and in furtherance of the conspiracy is admissible against another coconspirator as an exception to the hearsay rule (People v Rastelli, 37 NY2d 240, 244, cert denied 423 US 995). However, this evidence may be admitted only upon a showing that a prima facie case of conspiracy has been established (People v Salko, 47 NY2d 230, 237, rearg denied 47 NY2d 1010; People v Rastelli, supra). "Of course, the determination whether a prima facie case of conspiracy has been established must be made without recourse to the declarations sought to be introduced” (People v Salko, supra, at 238; see also, Richardson, Evidence § 244 [Prince 10th ed]).

The People’s evidence on the second count established that defendant Tran and his alleged coconspirator Chu were both hotel employees, that defendant urged an undercover investigator to return to one of the hotels on the day in question, and that Chu gave $100 to the investigator when he returned. The People argue that Chu’s recorded statement that the purpose of the payment was to "clear up * * * something here, about Local Law 16” is an admissible non-hearsay verbal act under People v Salko (47 NY2d 230, supra). Salko would allow the admission of statements which are not offered for the truth of the matter asserted, but merely to give "legal effect to the conduct which they accompany” (id., at 239). Although Chu’s verbal act is admissible, it does not resolve the problem of this case. That evidence, not admitted for its truth, at best served to establish only that Chu paid the investigator $100 to influence his handling of the hotel’s alleged Local Laws, 1984, No. 16 violations. It does not and cannot be used to supply the prima facie foundation or connection to defendant as part of a conspiracy. Moreover, to allow the verbal act exception from Salko to be bootstrapped in this fashion in the circumstances of this case would stamp down the rule itself.

This case is very different from Salko (47 NY2d 230, supra), where the defendant made admissible statements both to the police officer receiving the bribe and to the investigating District Attorney linking defendant with the witness coconspirotor. Those statements by themselves were prima facie proof of the predicate conspiracy, which rendered admissible a coconspirator’s hearsay statements. There is not only nothing like that here, there is nothing here. Where circumstantial evidence is weakly held together by "subjective inferential links based on probabilities of low grade or insufficient degree” (People v Cleague, 22 NY2d 363, 367), a prima facie case will not be deemed satisfied. Since a prima facie case of a conspiracy was never made out, the recorded hearsay statements of Chu referring to defendant in any respect never should have been allowed into evidence. Having been admitted conditionally on a reserved objection, the trial court should have stuck to its original assessment and ultimately sustained the objection and set aside the flawed verdict. Lacking any prima facie linchpin tying defendant to Chu, count two fails for insufficiency of proof.

Accordingly, the order of the Appellate Division should be reversed and both counts of the indictment dismissed.

Simons, J.

(dissenting in part). I would affirm insofar as defendant was convicted of violating Penal Law § 200.00 under the first count of the indictment. The evidence established that defendant offered a benefit to a public official intending to influence official action. He did so by deliberately stuffing $310 into the pocket of the investigator inspecting the Carter Hotel, after the inspector had identified a code violation. In my view, that conduct constituted bribery, third degree, as defined by the statute. The majority concludes the indictment must fail, however, because there was no evidence establishing that the bribe-giver "understood” the inspector’s actions would be influenced thereby. If defendant did not understand this, it is difficult to imagine what could have been in his mind. At the very least, the evidence was sufficient to permit the jury to infer that defendant understood his payment would procure a benefit. The majority apparently believes it was foreclosed from drawing such an inference absent evidence that the inspector accepted or acquiesced in the bribe. The statute, however, requires only the intent to influence official action and defendant’s conduct was no less culpable merely because the investigator reported the incident to his superiors. Were it otherwise, there could be no bribery of undercover agents.

I disagree with the majority’s interpretation of the statute because it establishes not only a novel mens rea for the crime —one inconsistent with the statute’s legislative history and the New York law on bribe-giving generally — but makes bribcry of a public official hinge upon the mens rea of the bribe-receiver, not the bribe-giver. While the majority disclaims any requirement of mutuality, its dismissal of the indictment in this case establishes a requirement of nothing less. Had the majority concluded only that the court’s instructions were in error for failing to correspond with its interpretation of the statute, it would remit for a new trial. Its decision to dismiss rests upon a determination that the evidence is insufficient because the inspector did not exhibit some evidence of an "understanding”; defendant had only the hope that the money would influence official action. The crime does not require such evidence. It is the intent and belief of the bribe-giver that is relevant, not that of the receiver. The Legislature could hardly have intended that citizens are free to offer cash to public officials just so long as the officials do nothing to prompt the offer.

The gist of the crime of bribery is the wrong done to the people by the corruption in the public service (People v Chapman, 13 NY2d 97, 101; People v Lafaro, 250 NY 336, 342). Indeed, it is irrelevant that the result the bribe-giver seeks is lawful and proper (see, Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 200, at 454). It is the effort to bypass the orderly processes of government to secure an impermissible advantage that is criminal. That being so, the purpose of the bribery statutes is satisfied if the bribe-giver intends his act to influence a public servant’s conduct.

The language of the statute requires no more. It provides:

"A person is guilty of bribery in the third degree when he confers, or offers or agrees to confer, any benefit upon a public servant upon an agreement or understanding that such public servant’s vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced” (Penal Law § 200.00).

The operative words are "confers, or offers or agrees to confer.” The courts below concluded this element of the crime was satisfied if defendant, by his conduct, intended to influence the investigator’s conduct. That construction is consistent with the crime as it was defined in sections 371, 378, 465,1233 and 1822 of the former Penal Law from which section 200.00 is derived (see, People v Grossman, 145 Misc 781, 782) and we are advised by the revisors that in enacting the new statute, "no major or substantive changes” were intended (see, Commn Staff Notes, reprinted in Proposed NY Penal Law [Study Bill, 1964 Senate Int 3918, Assembly Int 5376] art 205, at 371 [1964]; Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, at 453; see also, People v Brown, 48 AD2d 95). The majority effectively writes the term "offer” out of the statute by focusing on the phrase "agreement or understanding” and thus making the crime dependent on the acts of the bribe-receiver. In my view, the phrase "agreement or understanding” was not intended to require mutuality, as the majority concedes, or even acquiescence from the receiver. The words, as found in the present statute and in former Penal Law § 2440 (bribing a witness), have been correctly construed to be "tantamount to 'with the intent’ ” (People v Kathan, 136 App Div 303, 307 [addressing Penal Law § 2440, bribing a witness]; People v Brown, 48 AD2d 95; see also, People v Brown, 40 NY2d 381, 395 [Breitel, Ch. J., dissenting, "the crime of bribery did not require any agreement or understanding to accept a bribe”]).

This interpretation harmonizes with New York’s other bribery statutes which provide that the mens rea requirement for the crime is only an intent to bribe (see, Penal Law § 180.00; Public Officers Law § 75). Thus, the majority’s determination that defendant is innocent rests upon the fortuity that defendant bribed a public official, for those bribery statutes dealing with business persons, labor officials, sports participants and others base the crime expressly or implicitly on the intent of the bribe-giver. There would seem to be no reason why the bribery of public servants should require some greater quantum of proof before the crime is committed, when the revisors disclaimed any intent to make a substantive change in the former statute which required none. Indeed, it is not clear that the majority’s interpretation actually requires a greater quantum of proof. By defining "understanding” as a "unilateral perception or belief’ (majority opn, at 178), the majority, in my view, is saying nothing more than that the bribe-giver has the intention to influence oficial action.

The majority also support their view by reference to People v Harper (75 NY2d 313, supra) and other decisions of this Court involving bribe-receiving (see, majority opn, at 177). The mental state of the other party to the transaction is significant in the crime of bribe-receiving to insure that the receiver understands the purpose of the transaction, as those cases hold, but it is irrelevant in the case of bribe-giving, such as the one before us, where the bribe-giver has made his purpose with respect to a specific matter manifest.

Accordingly, I dissent and would affirm the judgment insofar as it finds defendant guilty on the first count of the indictment.

Chief Judge Wachtler and Judges Kaye and Titone concur with Judge Bellacosa; Judge Simons dissents in part and votes to modify in another opinion in which Judge Hancock, Jr., concurs; Judge Smith taking no part.

Order reversed and indictment dismissed.

       This continued to be the essence of the crime, even after the revision of the Penal Law (see, People v Graham, 57 AD2d 478, 482, quoting from a former Practice Commentaries to Penal Law § 200.00: " 'The gist of the crime of bribery is the effort to secure an impermissible advantage’ ”). People v Harper (75 NY2d 313), relied upon by the majority and cited extensively in its opinion (see, majority opn, at 176, 177), involved a charge of bribe-receiving by a witness, in violation of Penal Law § 215.05. The "gist” of that crime (see, majority opn, at 176) is not relevant to bribe-giving under Penal Law § 200.00.


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    Anthony J. DiMichel, Respondent, v South Buffalo Railway Company, Appellant. David L. Poole, Respondent, v Consolidated Rail Corporation, Appellant.
    Argued September 11,1992;
    decided October 20, 1992

      POINTS OF COUNSEL

      Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo (Kevin A. Szanyi of counsel), for appellant in the first above-entitled action.
    I. Surveillance materials constitute material prepared for litigation. (Austin v Coastal Indus., 112 AD2d 123; Thibodeau v Rob Leasing, 88 AD2d 1085; Puntoriero v Johnson, 115 AD2d 229; Dattmore v Eagan Real Estate, 112 AD2d 800; Harris v Processed Wood, 89 AD2d 220; Abraham v Hanover Ins. Co., 66 AD2d 808.) II. Surveillance materials do not fall within the limited exception provided by CPLR 3101 (d) (2). (Snead v American Export-Isbrandtsen Lines, 59 FRD 148; Hikel v Abousy, 41 FRD 152; Bogatay v Montour R. R. Co., 177 F Supp 269; Volpicelli v Westchester County, 102 AD2d 853.) III. The Fourth Department improperly rewrote CPLR 3101 (d) (2) by creating an irrebutable presumption. (Murphy v Board of Educ., 104 AD2d 796, 64 NY2d 856; Pajak v Pajak, 56 NY2d 394; Matter of Alonzo M. v New York City Dept, of Probation, 72 NY2d 662; Patrolmen’s Benevolent Assn, v City of New York, 41 NY2d 205.) IV. This Court should not eliminate the privilege for material prepared for litigation to deter unethical conduct that is already prohibited. V. Protecting surveillance materials from discovery furthers the truth-finding process. (Mort v A/S D/S Svendborg 41 FRD 225.) VI. Surveillance materials do not constitute a party’s "statement” within the meaning of CPLR 3101 (e). (Saccente v Toterhi, 35 AD2d 692.)

      Paul William Beltz, P. C., Buffalo, and Catherine M. Beltz for respondent in the first above-entitled action.
    I. The majority of courts in this and other jurisdictions have allowed discovery of surveillance videotapes and films. (Careccia v Enstrom, 174 AD2d 48; Marte v Hickok Mfg. Co., 154 AD2d 173; Prewitt v Beverly-50th St. Corp., 145 Misc 2d 257; Martin v Long Is. R. R. Co., 63 FRD 53; Snead v American ExportIsbrandtsen Lines, 59 FRD 148.) II. Surveillance films are discoverable because there is a substantial need for their discovery and because they cannot be duplicated by plaintiff. (Snead v American Export-Isbrandtsen Lines, 59 FRD 148; Martin v Long Is. R. R. Co., 63 FRD 53; Allen v CrowellCollier Publ. Co., 21 NY2d 403; Rios v Donovan, 21 AD2d 409; Beauchamp v Riverbay Corp., 156 AD2d 172; New England Seafoods v Travelers Cos., 84 AD2d 676; Steven v Metropolitan Suburban Bus Auth., 117 AD2d 733; Rosario v General Motors Corp., 148 AD2d 108; Austin v Coastal Indus., 112 AD2d 123; Wilhelm v Abel, 1 AD2d 55.) III. Prior precedents of this Court, the rational behind enactment of CPLR article 31 and public policy require broad discovery including disclosure of all surveillance materials. (Martin v Long Is. R. R. Co., 63 FRD 53.) IV. Surveillance materials constitute discoverable "statements” pursuant to CPLR 3101 (e). (Saccente v Toterhi, 35 AD2d 692; Maffeo v Comptois, 55 Misc 2d 779; Sacks v Greyhound Corp., 18 AD2d 747; Lynbrook Union Free School Dist. v Industrial Temperature Sys., 113 Misc 2d 704; McKenzie v McKenzie, 78 AD2d 585; Chase v Patron Transmission Co., 61 Misc 2d 200.) V. Surveillance materials are discoverable regardless of whether defendant intends to use such materials at trial. (Sinclair Ref. Co. v Jenkins Co., 289 US 689; Caprara v Chrysler Corp., 71 AD2d 515, 52 NY2d 114; Gilly v City of New York, 69 NY2d 509.)

      Bauman & Kunkis, P. C, New York City (Bert Bauman of counsel), and Lucinda M. Finley, Buffalo, for the New York State Trial Lawyers’ Association, amicus curiae in the first above-entitled action.
    I. Disclosure of surveillance photographs or tapes furthers the purposes of discovery. (Careccia v Enstrom, 174 AD2d 48; Prewitt v Beverly-50th St. Corp., 145 Misc 2d 257; Allen v Crowell-Collier Publ. Co., 21 NY2d 403; Martin v Long Is. R. R. Co., 63 FRD 53; Meehan v McCloy, 266 App Div 706; Rios v Donovan, 21 AD2d 409; Wilhelm v Abel, 1 AD2d 55; Marte v Hickok Mfg. Co., 159 AD2d 316; Bogatay v Montour R. R. Co., 177 F Supp 269; Totoritus v Stefan, 6 AD2d 123.) II. Surveillance tapes are fully discoverable either as statements under CPLR 3101 (e) or as litigation materials for which plaintiff has a substantial need under CPLR 3101 (d) (2). (Saccente v Toterhi, 35 AD2d 692; McKenzie v McKenzie, 78 AD2d 585; Chase v Patron Transmission Co., 61 Misc 2d 200; Prewitt v Beverly-50th St. Corp., 145 Mise 2d 257; Snead v American Export-Isbrandtsen Lines, 59 FRD 148.)

      O’Shea, Reynolds, Napier, Cummings & Kirby, Buffalo (Kevin J. Bauer of counsel), for the Defense Trial Lawyers of Western New York, Inc., and others, amici curiae in the first and second above-entitled actions. I. Surveillance photographs and videotapes are material prepared for litigation.

      (Careccia v Enstrom, 174 AD2d 48; Marte v Hickok Mfg. Co., 154 AD2d 173.) II. The substantial need for discovery of surveillance materials must not be presumed, but demonstrated case-by-case. (Marte v Hickok Mfg. Co., 154 AD2d 173; Snead v American Export-Isbrandtsen Lines, 59 FRD 148; Careccia v Enstrom, 174 AD2d 48; Mart v A/S D/S Svendborg, 41 FRD 225; Hikel v Abousy, 41 FRD 152.)

      Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Richard F. Griffin of counsel), and Nixon Hargrave, Devans & Doyle, Buffalo (Susan C. Roney and Laurie Styka Bloom of counsel), for appellant in the second above-entitled action.
    I. The court below did not apply the new standard of CPLR 5501 (c) in reviewing the excessive damages verdict. (Harvey v Mazal Am. Partners, 79 NY2d 218; Nairn v National R. R. Passenger Corp., 837 F2d 565; Eschberger v Consolidated Rail Corp., 174 AD2d 983, 79 NY2d 752; Johnston v Colvin, 145 AD2d 846; Askey v Occidental Chem. Corp., 102 AD2d 130; Smith v Hooker Chem. & Plastics Corp., 125 AD2d 944.) II. The error of the trial court in granting full discovery of all of appellant’s surveillance material, compounded by the affirmative use of the fruits of that order by plaintiff during the trial, denied defendant a fair trial. (DiMichel v South Buffalo Ry. Co., 178 AD2d 914; Marte v Hickok Mfg. Co., 154 AD2d 173; Careccia v Enstrom, 174 AD2d 48; Thibodeau v Rob Leasing, 88 AD2d 1085; O’Connell v Jones, 140 AD2d 676.) III. The errors in the admission and exclusion of evidence and the Court’s charge collectively prejudiced substantially the right of defendant to a fair trial. (Kavanaugh v Nussbaum, 129 AD2d 559, 71 NY2d 535; People v Geoghegan, 68 AD2d 279, 51 NY2d 45; People v Bartolomeo, 126 AD2d 375; Roma v Blaustein, 44 AD2d 576; Healy v Rennert, 9 NY2d 202; Locastro v Horn, 138 AD2d 358; Case v New York Cent. R. R. Co., 329 F2d 936; Schumacher v United States, 216 F2d 780, 348 US 951; United States v Malizia, 503 F2d 578, 420 US 912; Ciriello v Virgues, 156 AD2d 417.) IV. Plaintiff's summation was highly prejudicial, inflamed the jury and denied Conrail a fair trial. (Minneapolis Ry. Co. v Moquin, 283 US 520; Giuamar v O’Donnell, 96 AD2d 1049.)

      Paul William Beltz, P. C., Buffalo, for respondent in the second above-entitled action.
    I. Surveillance films taken of plaintiffs by defendants are discoverable before trial under CPLR article 31. (Marte v Hickok Mfg. Co., 154 AD2d 173; Prewitt v Beverly-50th St. Corp., 145 Misc 2d 257; Careccia v Enstrom, 174 AD2d 48; Allen v Crowell-Collier Publ. Co., 21 NY2d 403; Totoritus v Stefan, 6 AD2d 123; Wilhelm v Abel, 1 AD2d 55; Saccente v Toterhi, 35 AD2d 692; McKenzie v McKenzie, 78 AD2d 585; Chase v Patron Transmission Co., 61 Misc 2d 200; Beauchamp v Riverbay Corp., 156 AD2d 172.) II. Defendant seeks review of nonreviewable questions of fact and exercises of discretion. (Clark v State of New York, 68 NY2d 632; Matter of Taines [Barry One Hour Photo Process], 66 NY2d 757; Tate v Colabello, 58 NY2d 84; Harvey v Mazal Am. Partners, 79 NY2d 218; Eschberger v Consolidated Rail Corp., 174 AD2d 983; 79 NY2d 752; Gutin v Mascali & Sons, 11 NY2d 97; Reehil v Fraas, 197 NY 64; DeVaul v Carvigo Inc., 138 AD2d 669, 72 NY2d 914, 806.) III. There were no reversible errors concerning admission of evidence or jury instructions. (Cooper-Rutter Assocs. v Anchor Natl. Life Ins. Co., 168 AD2d 663; James v Metro N. Commuter R. R., 166 AD2d 266; Jarrett v Madifari, 67 AD2d 396; People v Geoghegan, 68 AD2d 279, 51 NY2d 45; Tate v Colabello, 58 NY2d 84; Caprara v Chrysler Corp., 52 NY2d 114; Sharkey v Locust Val. Mar., 96 AD2d 1093; Guarino v Mine Safety Appliance Co., 25 NY2d 460; Jenkins v Etlinger, 55 NY2d 35; Naveja v Hillcrest Gen. Hosp., 148 AD2d 429.)
   OPINION OF THE COURT

Chief Judge Wachtler.

On these two appeals, we consider whether surveillance films prepared by a defendant in a personal injury action are discoverable by the plaintiff before trial. Surveillance films can serve a uniquely compelling function in a personal injury trial. They are designed to undermine, in a potentially sensational manner, a plaintiff’s claims that he or she was seriously injured. At the same time, however, visual images are easily manipulated and can, as the result of skillful editing or crafty camera work, give a false depiction of a plaintiff’s condition. Defense counsel argues that only by permitting a defendant to spring these films on the plaintiff at trial will the truth-seeking function of cross-examination be safeguarded. Plaintiffs’ counsel, on the other hand, argues that because films are so easily manipulated, they must be disclosed before trial in order to permit counsel to verify the accuracy of the images portrayed.

At its most basic, this controversy requires us to fashion a rule that respects a defendant’s qualified right to keep videotapes prepared in anticipation of litigation private, but that at the same time advances the policy of liberal disclosure underlying CPLR article 31. The Appellate Division held in both of these cases that the defendants would be obligated to disclose only those tapes which they planned to use at trial. Under the facts present here, we find this balance to be an appropriate one. Accordingly, in DiMichel v South Buffalo Railway Company, we affirm. In Poole v Consolidated Rail Corporation, however, because of trial errors we will discuss below, we reverse and remit for a new trial on both liability and damages.

I. DiMichel v South Buffalo Railway Company

Plaintiff Anthony DiMichel commenced this action against South Buffalo Railway Company (South Buffalo) in Supreme Court, Erie County, by service of summons and complaint dated January 16, 1986. Plaintiff alleged that on June 6, 1984, while employed by South Buffalo, he sustained injuries in a fall. DiMichel charged South Buffalo with violations of the Federal Employers’ Liability Act, the Safety Appliance Act and the Boiler Inspection Act and asked for $500,000 in damages.

In the course of pretrial discovery, plaintiff asked for disclosure of all videotapes or surveillance films that defendant may have taken of plaintiff. Without conceding that it in fact possessed surveillance materials, South Buffalo contended that any such material was not discoverable. Plaintiff then moved to compel disclosure. The trial court denied this motion.

Plaintiff moved to reargue the motion to compel after the Appellate Division, First Department, held such films to be discoverable in Marte v Hickok Mfg. Co. (154 AD2d 173). Upon reargument, the motion to compel disclosure was granted and defendant was ordered "to turn over to plaintiff for inspection and copying any and all videotapes and/or surveillance films of the plaintiff,” but stayed this order pending appeal to the Appellate Division. The Appellate Division modified, with two Justices dissenting, holding that the defendant was obligated to turn over those surveillance materials it intended to use at trial, and that the defendant would be precluded from using any surveillance material it did not supply to plaintiff within 60 days of its order. The Appellate Division stated that the surveillance material constituted material prepared for litigation, "discoverable upon a showing that the party seeking discovery has a substantial need of the materials in preparation of the case and is unable without undue hardship to obtain their substantial equivalent by other means” (178 AD2d 914, 915, citing CPLR 3101 [d] [2]). The two dissenters would have held that plaintiff had failed to show factually that he had a substantial need for the material or that he was unable without undue hardship to obtain its equivalent. Defendant moved the Appellate Division for leave to appeal to this Court, and the Appellate Division certified the following question: "Was the order of this Court entered December 26, 1991 properly made?”

II. Poole v Consolidated Rail Corporation

Plaintiff David Poole commenced this action in Supreme Court, Erie County, against his employer, Consolidated Rail Corporation (Conrail), charging that he had been seriously injured as the result of an August 22, 1985 fall from an allegedly defective ladder. In his verified complaint dated August 21, 1986, Poole alleged that Conrail had failed to provide plaintiff with a safe place to work and had failed to ensure that there were proper safety features on the job. Plaintiff asked for $1 million in damages, but in an amended complaint dated April 10, 1990, plaintiff increased the amount of damages sought to $5 million.

In the course of pretrial discovery, plaintiff served a notice to produce dated November 20, 1989, which directed Conrail to turn over "all surveillance films, photographs, videotapes and related materials concerning * * * surveillance.” Defendant moved for a protective order, but this motion was denied, and in an order dated June 8, 1990, plaintiff’s request to view all surveillance films produced by defendant was granted.

At trial, plaintiff produced medical evidence to support his claims that he had sustained permanent and serious injury to his back as a result of the accident. Further, plaintiff introduced evidence to establish that the accident had rendered him impotent. Defendant did not enter any surveillance material into evidence. The jury found in favor of plaintiff and awarded him $4,152,000 in damages.

Conrail appealed to the Appellate Division, which affirmed, with two Justices dissenting. The Appellate Division, citing DiMichel, which was decided at the same time, held that the lower court ruling that plaintiff was entitled to all surveillance material was too broad and should have been confined to that surveillance material which defendant had intended to use at trial. The Court deemed this error to be harmless, however, "because the evidence of defendant’s liability and plaintiff’s damages was overwhelming and because defendant suffered no prejudice by the court’s ruling” (178 AD2d 941, 942). The dissenting Justices would have held that the award deviated materially from what was. reasonable compensation (CPLR 5501 [c]) and would have awarded defendant a new trial on damages. The defendant appealed to this Court as of right (CPLR 5601 [a]).

III.

As a preliminary matter, we note that, because of the procedural posture of each of these cases, the question before us is a rather narrow one. In each case, as noted above, the Appellate Division held that defendants had to turn over only those surveillance tapes that they intended to use at trial. Defendants appealed from this decision in both cases. Because any broadening of the scope of discovery authorized by the Appellate Division would, in effect, grant affirmative relief to plaintiffs, who are not appellants here (Hecht v City of New York, 60 NY2d 57, 63), we cannot consider plaintiffs’ arguments that they are entitled to view every surveillance film that defendants may have taken, regardless of whether defendants intend to use the films at trial.

Having acknowledged this procedural constraint, we now turn to the unique problems posed by surveillance films. Personal injury defendants secure surveillance materials in order to verify the extent of a plaintiff’s purported injuries and introduce them because they are powerful and immediate images that cast doubt upon the plaintiff’s claims. And indeed, if accurate and authentic, a surveillance film that undercuts a plaintiff’s claims of injury may be devastatingly probative. At the same time, however, film and videotape are extraordinarily manipulable media. Artful splicing and deceptive lighting are but two ways that an image can be skewed and perception altered. As one court has noted, "[t]he camera may be an instrument of deception. It can be misused. Distances may be minimized or exaggerated. Lighting, focal lengths, and camera angles all make a difference. Action may be slowed down or speeded up. The editing and splicing of films may change the chronology of events. An emergency situation may be made to appear commonplace. That which has occurred once, can be described as an example of an event which recurs frequently * * * Thus, that which purports to be a means to reach the truth may be distorted, misleading, and false” (Snead v American Export-Isbrandtsen Lines, 59 FRD 148, 150).

Thus, while an accurate surveillance film may indeed prove to be a bombshell, the possibility of inaccuracy, given the nature of the medium, is very real. In resolving the question now before us, then, it is important to note that New York has long favored open and far-reaching pretrial discovery. To a large extent, New York’s open disclosure policy was intended to mark an end to the presentation of totally unexpected evidence and to substitute honesty and forthrightness for gamesmanship. To that end, CPLR 3101 (a) provides that "[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” In Allen v Crowell-Collier Publ. Co. (21 NY2d 403, 407), this Court held that, in light of the statute’s purpose and legislative history, "[t]he words, 'material and necessary’, are * * * to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason” (see also, Rios v Donovan, 21 AD2d 409, 411 ["The purpose of disclosure procedures is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits”]).

Courts in this State that have considered the discoverability of surveillance tapes have turned to two separate subdivisions of CPLR 3101: CPLR 3101 (d) (2) and CPLR 3101 (e) (see, e.g., Lorino v Manhattan & Bronx Surface Tr. Operating Auth., NYLJ, Mar. 15, 1990, at 24, col 5 [CPLR 3101 (d) (2)]; Prewitt v Beverly-50th St. Corp., 145 Misc 2d 257 [both]). CPLR 3101 (d) (2) provides that materials otherwise discoverable under subdivision (a) which were prepared in anticipation of litigation or for trial are obtainable only upon a showing that "the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means” (emphasis added). CPLR 3101 (e), unlike subdivision (d) (2), is in no way qualified; it gives a party an absolute right to obtain a copy of his or her own statement.

The first surveillance film case to reach the Appellate Division was Marte v Hickok Mfg. Co. (supra). In Marte, the Appellate Division, First Department, held that surveillance tapes were discoverable because they constituted statements of the plaintiff under CPLR 3101 (e) (id., at 177). In reaching its decision, the Appellate Division cited an earlier decision, Saccente v Toterhi (35 AD2d 692), in which the Appellate Division had held that a photograph of the plaintiff that had been taken a short time after the accident in question, some four years before trial, was a visual or photographic statement made by plaintiff, and therefore discoverable under subdivision (e) (id.).

The Appellate Division, Fourth Department, expressly refused to follow the lead of the First Department in one of the two cases now before us, DiMichel v South Buffalo Railway Company. The Court declined to consider surveillance films as statements for purposes of CPLR 3101 (e), instead treating them as material prepared for litigation to which a qualified privilege attached (CPLR 3101 [d] [2]). In concluding that the material was discoverable, the Court held that the substantial need and undue hardship requirements had been satisfied: "[i]t cannot be gainsaid that plaintiff has a substantial need for discovery of the surveillance materials based on the fact that 'visual reproductions may not always provide a correct picture of what they purport to depict since they are subject to manipulation’ * * * For that same reason, it is impossible for plaintiff to obtain the substantial equivalent of the surveillance materials by other means” (id., at 915, quoting Marte v Hickok Mfg. Co., supra, at 176, and citing Snead v American Export-Isbrandtsen Lines, 59 FRD 148, supra).

In Careccia v Enstrom (174 AD2d 48), the Appellate Division, Third Department, agreed with the Fourth Department that surveillance tapes were not party statements for purposes of CPLR 3101 (e), but were instead material prepared in anticipation of litigation under CPLR 3101 (d) (2). The Court held that surveillance videotapes were analogous to the statements and reports of an investigator hired by defendant to observe plaintiff’s activities, which fall within the scope of CPLR 3101 (d) (2) (id., at 50). Expressly disavowing the Fourth Department’s holding in DiMichel, however, the Third Department stated that since the party seeking discovery has the burden of proving substantial need and hardship (see, e.g., Thibodeau v Rob Leasing, 88 AD2d 1085), the Court was "unwilling to conclude that the elements necessary for an order for production under CPLR 3101 (d) (2) are inherent in the very nature of the visual evidence, for such a conclusion would effectively rewrite the statute to create another exception to the rule governing material prepared for litigation * * * which is the function of the Legislature, not the courts.” Specifically, the Court rejected the argument that the plaintiff had a substantial need for disclosure in order to verify the accuracy of the videotape, holding that authenticity could be verified through voir dire and cross-examination of the person who had made the videotape (Careccia v Enstrom, supra, at 51).

Finally, the Appellate Division, Second Department, has also held that surveillance films constitute material prepared for litigation to which a qualified privilege attaches (Kane v Her-Pet Refrig., 181 AD2d 257). That Court, however, agreed with the analysis of the Appellate Division, Fourth Department in DiMichel, holding that "[although surveillance evidence constitutes material obtained in preparation for litigation, its protected status is overcome here by the plaintiffs’ substantial need to verify the accuracy of the potentially devastating films prior to trial”. (Id., at 265.)

This is clearly an issue that has fragmented the four departments of the Appellate Division. To review briefly, the First Department would treat surveillance films as discoverable in their entirety pursuant to CPLR 3101 (e), which governs party statements. The Second Department followed the lead of the Fourth Department in DiMichel by treating surveillance films as material prepared for litigation and by holding that substantial need and undue hardship inhered in the nature of the films themselves. Finally, the Third Department, while also treating these films as material prepared for litigation, held that such films were discoverable only upon a showing of substantial need and undue hardship.

Having considered the different approaches, we agree with the Second, Third and Fourth Departments that surveillance films should be treated as material prepared in anticipation of litigation, and as such, are subject to a qualified privilege that can be overcome only by a factual showing of substantial need and undue hardship.

That the plaintiffs in both of these cases have a substantial need to view surveillance films before trial is manifest. Because films are so easily altered, there is a very real danger that deceptive tapes, inadequately authenticated, could contaminate the trial process. The question that remains, therefore, is whether plaintiffs confronted with surveillance films for the first time at trial would have an adequate opportunity to ascertain the films’ accuracy and authenticity. The dissenters in DiMichel and the Third Department in Careccia believed so, reasoning that surveillance films could be authenticated at trial through voir dire or cross-examination of the person who had made the film. On balance, however, we disagree. Authentication of surveillance films can be a slow and painstaking process, and because of the potentially devastating effects of such evidence, it would be improper to curtail a plaintiff’s efforts to do so. Thus, a plaintiff, confronted with a surveillance film at trial, would certainly be entitled to a continuance to examine the video evidence. Indeed, it would appear to be well within the discretion of a Trial Judge, under certain circumstances, to give plaintiff an extended continuance in order to retain an expert who could ascertain the authenticity of proffered video evidence. Thus, if defendants were allowed to withhold surveillance evidence until trial, personal injury trials could be routinely disrupted and delayed.

Further, a plaintiff confronted with altered video evidence for the first time at trial would likely be prejudiced by the apparent weight and authority of such evidence. Even if after careful examination plaintiff was able to demonstrate that the evidence had indeed been distorted, it would be difficult to undo its initial impact and to erase the impression left in the minds of the jury members.

Defendants dispute plaintiffs’ claims of substantial need, arguing that the real reason they seek to obtain the tapes prior to trial is to learn what evidence the defendants intend to produce at trial so that they may tailor their trial testimony accordingly. This, defendants argue, would greatly impair the truth-finding function of cross-examination. This argument, however, is flawed for at least two reasons. First, it runs counter to New York’s open pretrial disclosure policy, as discussed earlier. Clearly, to permit defendants to withhold this evidence until trial, even for the ostensible purpose of promoting vigorous cross-examination, would be to return to an earlier time, when subterfuge and surprise were common trial strategies. Second, it is persuasive only if we assume that surveillance tapes are always accurate and plaintiffs always dishonest. As noted above, however, surveillance films are extraordinarily susceptible to manipulation, and, once altered, are peculiarly dangerous. Thus, we cannot fashion a rule that is premised upon their authenticity, as defendants urge. However, the danger identified by defendants is a real one. We believe that it can be largely eliminated by providing that surveillance films should be turned over only after a plaintiff has been deposed.

We further find that plaintiffs have established that they cannot without undue hardship obtain the substantial equivalent of surveillance materials by other means. Although plaintiffs are aware of their own physical ailments and the nature of their disabilities, this is no substitute for viewing the surveillance materials taken by the defendants. It is only by viewing the surveillance film that plaintiffs can determine when it was made and whether the activities depicted were typical of that time or were the product of an emergency situation. Visual evidence of this kind is unique because it memorializes a particular set of conditions that can likely never be replicated. Only by observing the conditions as they appear on film can the plaintiffs respond to possible distortions or prepare to explain seeming inconsistencies to the jury. Thus, we conclude that the second prong of CPLR 3101 (d) (2) has also been satisfied.

In DiMichel v South Buffalo Railway Company, the sole issue was the discoverability of the surveillance tapes. Having concluded that the plaintiff was entitled to view those tapes that the defendant intended to use at trial, if indeed any such tapes exist, our analysis in that case is at an end. Accordingly, the order of the Appellate Division should be affirmed and the certified question answered in the affirmative.

One issue remains to be discussed in Poole v Consolidated Rail Corporation, however. Having examined the record and considered the parties’ arguments, we remain greatly troubled by both trial tactics employed by plaintiffs counsel in this case and certain rulings made by the Trial Judge. Although the Appellate Division concluded the lower court had erred in ordering full discovery of all surveillance tapes, the Appellate Division, in conducting its harmless error analysis, found the trial errors cited by defendant not so egregious as to require a new trial. We disagree. We believe that these errors permeated the trial and created a climate of hostility that effectively destroyed the defendant’s ability to obtain a fair trial.

We are most troubled by three separate errors. The first relates directly to our decision regarding the discoverability of the surveillance tapes. As we noted earlier, the defendant here did not introduce surveillance material into evidence at trial. Plaintiff’s counsel, however, referred specifically and repeatedly to the fact that such films had been taken. In fact, in his summation, plaintiff’s attorney alluded to the existence of surveillance films and theorized that the defense did not introduce the surveillance tapes into evidence because they did not support the defendant’s case. This tactic was the subject of a mistrial motion brought by defendant’s counsel upon the completion of the summation.

This conduct was highly prejudicial, and, we conclude, improper. Defendant was, as the dissent noted, "twice injured by the court’s ruling that permitted the jury to speculate about what the tapes depicted and permitted it to infer that, if the tapes had been produced, they would have supported plaintiff’s contentions” (178 AD2d, at 943, supra).

More fundamentally, however, we are troubled by these tactics because they unravel the careful compromise we have crafted today. In holding that the plaintiff here was entitled to obtain those surveillance materials that defendant planned to use at trial, on direct or cross-examination, we have attempted to reconcile defendant’s interests in keeping matter prepared in anticipation of litigation private with plaintiff’s need to authenticate easily distorted visual evidence. We have been guided by a policy of liberal disclosure, and we seek above all else to ensure that both plaintiff and defendant receive a fair trial.

Plaintiffs counsel here appears to have used this spirit of openness and liberality as a cover for tactics that effectively undermined the ultimate fairness of this trial. Defendant decided, for whatever reason, that the surveillance tapes did not help his case. That should have ended the matter. To permit the plaintiff to profit from his knowledge of the content and existence of such tapes in this manner would enable him, by virtue of open pretrial disclosure, to engage in the sort of gamesmanship that we are seeking to discourage in the defendant. Thus, we hold as a matter of law that where surveillance films have been duly turned over to the plaintiff pursuant to our decision today, and the defendant decides subsequently, as a matter of trial strategy, not to use such films at trial, plaintiff cannot turn this strategy to his or her advantage and comment on this decision to the jury.

The second error does not relate to the surveillance film issue, but is, in our opinion, more egregious. Defense counsel had been unable to produce at trial the man who had served as Conrail’s foreman at the time of the accident because he was undergoing open heart surgery. Defense counsel sought to introduce medical evidence to this effect to the jury, but the trial court sustained the plaintiff’s objections. At trial, plaintiffs counsel elicited testimony from a Conrail employee that the foreman had ordered him to destroy the ladder from which the plaintiff had fallen. In his summation, he repeatedly portrayed the foreman as reluctant to talk about the case and went so far as to argue that defendant did not produce the foreman in an effort to cover up the real facts behind the accident. An objection to the latter point was sustained, and the jury instructed to ignore it, but in his mistrial motion, defendant’s counsel referred specifically to these comments and to the court’s having prevented defendant from revealing to the jury the real reason behind the foreman’s inability to appear.

These references in counsel’s closing statement and the court’s decision precluding the admission of medical testimony were both clearly improper. We find that they too contributed to a climate of hostility that acted to deprive the defendant of a fair trial.

Lastly, we agree with the dissenters below that the Trial Judge abused his discretion when he prevented the defendant’s experts from testifying as to the amount that plaintiff could have been expected to earn from alternative employment. Prior to trial, defendant had sought to have plaintiff examined by its vocational expert, but the court granted plaintiff’s motion for a protective order. During cross-examinatian of this expert, however, plaintiff’s counsel repeatedly attempted to discredit this expert based upon his failure to have conducted such an examination and his consequent reliance upon documentation provided by defendant. Thus, not only was the defense precluded from offering relevant evidence regarding plaintiff’s future earning power, but this error was compounded by plaintiff’s efforts to portray the vocational expert’s testimony as incomplete and unreliable because of the expert’s failure to conduct an examination that was adamantly and successfully opposed by plaintiff.

We believe that these errors, taken together, deprived defendant of a fair trial and cannot be considered harmless. Under the facts present here, the trial court abused its discretion in denying defendant’s motion for a mistrial. The defendant is therefore entitled to a new trial on both liability and damages. Because we reverse and remit for a new trial, we do not reach defendant’s other claims.

Accordingly, in DiMichel v South Buffalo Railway Company, the order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. In Poole v Consolidated Rail Corporation, the order of the Appellate Division should be reversed, with costs, and a new trial granted.

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

In DiMichel v South Buffalo Ry. Co.: Order affirmed, etc.

In Poole v Consolidated Rail Corp.: Order reversed, etc.

       To the extent that our decision in Reehil v Fraas (197 NY 64) states that exceptions to improper summation comments raise no question of law reviewable by this Court, it is no longer to be followed.