Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Order to show Cause/Notice of Motion and Affidavits/Affirmations annexed Answering Affidavits/Affirmations Reply Affidavits/Affirmations Memoranda of Law Other — Letter Briefs and Exhibits 1-2 Decision/Order Upon the foregoing cited papers, the Decision/Order of the Court is as follows: In this commercial nonpayment proceeding previously scheduled for trial on January 18, 2023, respondent made an oral application to preclude the testimony of Ignatius (also known as Ignazio) Tamburello at trial, based upon Mr. Tamburello’s alleged mental incapacity to testify. The Court adjourned the trial to February 14, 2023, and directed the parties to submit letter briefs regarding the instant motion to preclude. For the reasons set forth below, the instant motion is granted and Mr. Tamburello is precluded from testifying as a witness in this proceeding. Respondent previously issued a judicial subpoena seeking Mr. Tamburello’s trial testimony as a defense witness. (Respondent’s Ex. A). At petitioner’s request (last reiterated January 12, 2023), respondent agreed to withdraw the subpoena based upon “a bona fide medical diagnosis” by a physician “diagnosing Mr. Tamburello with memory loss.” (Respondent’s Ex. E). However, on January 18, 2023, petitioner appeared and proffered Mr. Tamburello as petitioner’s sole trial witness despite petitioner’s prior request that respondent withdraw its subpoena for Mr. Tamburello. At the outset, the Court finds that petitioner is estopped from arguing Mr. Tamburello’s mental capacity to testify. A party may be estopped, as petitioner states in opposing the instant motion, if “the party has obtained some decisive relief through taking the prior inconsistent position.” (Petitioner’s Ltr. in Opp., at 1) (citations omitted). Although petitioner correctly notes that there has not yet been a judicial determination in this proceeding that Mr. Tamburello lacks to testify, the sole reason that issue was not previously before the Court was because petitioner asked respondent to withdraw Mr. Tamburello’s subpoena expressly in lieu of a motion to quash based upon petitioner’s express representation that Mr. Tamburello did not have the mental capacity to testify. (Respondent’s Ltr. In Supp., at 1; and Ex. B). Thus, based on petitioner’s representations of Mr. Tambuello’s incapacity and accompanying supporting evidence, petitioner received the benefit it stated it would have sought by a motion to quash, on the exact same grounds, in that respondent agreed to withdraw the subpoena at petitioner’s express request in lieu of motion practice. That the parties confirmed their agreement in writing by email, especially after petitioner having invoked the spectre of motion practice to quash, strongly favors estoppel, as the court system relies upon good faith negotiations between counsel in resolving disputes such as the issue at bar in managing the courts’ dockets. See, e.g., Amelius v. Grand Imperial LLC, Index No. 155226/2016, 2018 N.Y. Misc. LEXIS 495, *1-2 (Sup. Ct., New York Co. Jan. 31, 2018) (denying motion found to have been filed contrary to stipulated motion and briefing schedule); and People v. Wesley, Ind. No. 4362/2014, 2015 N.Y. Misc. LEXIS 5055, *1-2 (Sup. Ct., New York Co. May 7, 2015) (criticizing “disingenuous” practice regarding motion to quash). Even if petitioner were not estopped, the result on the merits would be no different. “Every person is competent to be a witness unless the court determines that the person does not have the capacity to warrant the reception of the person’s evidence.” N.Y.S. Unified Ct. Sys., Guide to New York Evidence, §6.01 (Dec. 2022 ed.).1 However, in order to testify, a witness must have “the ability to observe, recall and narrate,” that “events that he sees must be impressed in his mind; they must be retained in his memory; and he must be able to recount them with sufficient ability such that the presiding official is satisfied that the witness understands the nature of the questions put to him and can respond accordingly.” Id., Notes, quoting Brown v. Ristich, 36 N.Y.2d 183, 189 (1975). “In making that determination, the court may properly consider the testimony of physicians or other persons with information that would shed light on the capacity and intelligence of the prospective witness.” Id., Notes, quoting People v. Parks, 41 N.Y.2d 36, 46 (1976). Petitioner’s counsel has represented that Mr. Tamburello suffers from dementia and memory loss. (Respondent’s Exs. B and E). The sole independent evidence of Mr. Tamburello’s condition before the Court is a physician’s report stating that Mr. Tamburello is under their care for memory loss and Mini-Cog test results indicating that Mr. Tamburello scored 1 point on a 5-point scale in July 2022.2 (Respondent’s Ex. D). Any score of 2 or below “indicates [a] higher likelihood of clinically important cognitive impairment.” Mini-Cog, Scoring the Mini-Cog (2023).3 Moreover, petitioner has not offered any new medical information, such as an updated diagnosis or progress report from a treating physician, test results suggesting a less severe impairment, or an affidavit addressing Mr. Tamburello’s apparent diagnosis and its impact upon him. In essence then, the undisputed facts before the Court indicate that Mr. Tamburello presently suffers from dementia and memory loss, which petitioner itself claimed was so severe as to warrant Mr. Tamburello’s preclusion from testimony at the time respondent subpoenaed him. Indeed, even petitioner’s counsel does not assert anywhere in its opposition papers that Mr. Tamburello has the capacity to testify. (Petitioner’s Ltr. in Opp., at 1). Absent any evidence placing Mr. Tamburello’s condition in dispute, there is no basis to allow Mr. Tamurello’s testimony or to even conduct a swearability hearing pursuant to CPLR 2218. See, In re Sabatino, 59 A.D.2d 992, 992-993 (3d Dept. 1977) (discussing standard for holding evidentiary hearings in motions); and People v. L.G., 18 Misc. 3d 243, 246 (Crim. Ct., New York Co. 2007) (uncontested facts do not necessitate holding swearability hearing). Petitioner’s contention that “[m]any of Respondent’s counterclaims specifically allege Mr. Tamburello’s direct involvement or participation,” and that “Mr. Tamburello therefore has the right not only to testify on his own behalf but also to cross-examine witnesses against him, irrespective of Respondent’s subpoena for Mr. Tamburello’s testimony in Respondent’s case-in-chief,” does not change whether Mr. Tamburello is himself physically or mentally competent to testify. The Court also notes that Mr. Tamburello is not a named party to this proceeding, and nothing precludes petitioner corporation from offering any available competent evidence or competent witnesses in its defense, or from cross-examining witnesses against it, and any evidentiary issues concerning allegations regarding those suffering from mental illness or impairment are addressed by statute. See, e.g., CPLR 4519. Accordingly, it is ORDERED that Ignatius Tamburello is precluded from testifying in this proceeding. This constitutes the Decision and Order of the Court. Dated: January 27, 2023
