Benson v. Gardner

1

ASHLEY BENSON, Plaintiff, v. NEIL GARDNER, GARDNER'S ICE CREAM & COFFEE SHOPPE, Defendants.

No. 1:19-cv-1004 (TWD)

United States District Court, N.D. New York

February 22, 2022

APPEARANCES:

O'CONNELL, ARONOWITZ LAW FIRM

COUNSEL FOR PLAINTIFF

PREMO LAW FIRM

COUNSEL FOR DEFENDANT

OF COUNSEL:

STEPHEN R. COFFEY, ESQ.

PAMELA A. NICHOLS, ESQ.

BRIAN D. PREMO, ESQ.

DECISION AND ORDER

THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE

Invoking this Court's jurisdiction under 28 U.S.C. § 1332, Ashley Benson (“Benson” or “Plaintiff”) initiated this action against Neil Gardner (“Gardner”), Gardner's Ice Cream & Coffee Shoppe (“Gardner's Ice Cream”), and the Town of Stephentown (“Stephentown”) on August 14, 2019. (Dkt. No. 1.) The parties subsequently stipulated to the dismissal of Stephentown, and the case proceeded through discovery. (See Dkt. Nos. 30, 32, 42, 47, 53, 62.) The parties consented to the disposition of this case by a Magistrate Judge. (Dkt. No. 73.) Now before the court is a motion in limine advanced by Gardner and Gardner's Ice Cream (collectively, “Defendants”). (Dkt. No. 99.) The motion is GRANTED IN PART and DENIED IN PART. (See Dkt. No. 99.)

I. BACKGROUND

Plaintiff claims Gardner, an owner and employee of Gardner's Ice Cream, sexually assaulted and abused her when she was a minor employed at Gardner's Ice Cream. (Dkt. No. 1.) Plaintiff claims Gardner regularly and repeatedly touched her breasts, buttocks, and vagina from 1995 to 2000. Id. Plaintiff also claims that during this period, Gardner took her to an unoccupied house where he sexually assaulted and battered her. Id. Plaintiff accordingly asserts six causes of action against Defendants: (1) assault and battery (Gardner), (2) intentional infliction of emotional distress (Gardner), (3) negligent infliction of emotional distress (both Defendants), (4) false imprisonment (Gardner), (5) invasion of privacy (Gardner), and (6) negligence (Gardner's Ice Cream). Id.

Following an initial pretrial conference, the parties began discovery. (See Dkt. No. 26.) Initial disclosures required by Federal Rule of Civil Procedure 26(a)(1) were to be served by November 22, 2019, and discovery was due by July 1, 2020. Id. The undersigned subsequently extended the deadline for initial disclosures by 90 days. (Dkt. No. 31.) The undersigned also extended the deadline for discovery four times. (See Dkt. Nos. 32, 42, 47, 62.) Under the final and most recent extension, discovery was due by May 28, 2021. (Dkt. No. 62.) At the close of discovery, the case was deemed trial ready. (See Dkt. Nos. 63, 74.)

Trial is set to begin March 1, 2022. (Dkt. No. 79.) On February 8, 2022, Plaintiff's counsel submitted a trial brief summarizing the testimony of a witness (“the first witness”) he intends to call at trial. (Dkt. No. 90.) According to Plaintiff's counsel, the first witness will testify that Gardner raped her in 2008 when she was 15 years old. See Id. at 1. Plaintiff's counsel also anticipates the first witness will testify that Gardner “threatened to harm her” if she told anyone about the rape, and “paid her a large sum of money to keep quiet about what had occurred.” Id. at 1. Similarly, on February 14, 2021, Plaintiff's counsel informed defense counsel he intends to call another witness (“the second witness”) who will also testify that Gardner “inappropriately touched her breasts and her private parts and kissed and hugged her throughout her employment period without her consent.” (Dkt. No. 104-2; see generally Dkt. No. 104 at 2-3.)

Defendants subsequently moved to preclude the testimony of both witnesses, as well as any mention of Gardner's 2008 convictions for criminal possession of a forged instrument in the second degree and offering a false instrument in the first degree. (Dkt. Nos. 99, 104.) Defendants argue evidence of Gardner's criminal history should be precluded because: (a) the “conviction is more than ten (10) years old, ” (b) it “has no relevance to this matter, ” and (c) admission of such evidence would violate Federal Rule of Evidence 403. (Dkt. No. 9 at 2-3.) Defendants argue the testimony of both witnesses should be precluded because: (a) they were not listed as potential character or reputation witnesses in Plaintiff's initial disclosures, (b) Defendants did not depose them, and (c) their testimony is inadmissible under Federal Rules of Evidence 404(b) and 403. Id. at 1-2; see also Dkt. No. 104.

In response, Plaintiff's counsel raises no objection to Defendants' claim that the first witness was not included in Plaintiff's initial disclosures. (See Dkt. No. 103.) Rather, Plaintiff's counsel claims the first witness's testimony is admissible because “we have complied with the mandates of Federal Rule 415 and provided the Defendants with notice more than 15 days before trial.” Id. at 1. Plaintiff raises essentially the same claims regarding the second witness. (See Dkt. No. 104-2.)

II. DISCUSSION

A. Evidence of Defendant's Criminal History is Admissible under Federal Rule of Evidence 609(b)(1)

“Rule 609(b) of the Federal Rules of Evidence bars the use of a conviction more than ten years old to attack a witness's credibility unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 434 (2d Cir. 1993);^[1] see also Fed. R. Evid. 609(b)(1);^[2] Jeanty v. Cerminaro, No. 6:16-CV-00966 (BKS/TWD), 2021 WL 2778572, at *1-3 (N.D.N.Y. July 2, 2021). “A determination that the probative value of the conviction substantially outweighs its prejudicial effect must be made on-the-record and based on specific facts and circumstances.” United States v. Payton, 159 F.3d 49, 57 (2d Cir. 1998).

In conducting the necessary balancing test, courts consider the following factors: (1) the impeachment value of the prior crimes, (2) the date of the conviction and the Defendant's subsequent history, (3) the similarity between the past crime and the conduct at issue, (4) the centrality of the Defendant's credibility, and (5) the importance of the Defendant's testimony. United States v. Brown, 606 F.Supp.2d 306, 311-12 (E.D.N.Y. 2009) (collecting cases); see also Cerminaro, 2021 WL 2778572, at *2; Frierson v. Reinisch, No. 1:17-CV-44 (MAD/CFH), 2020 WL 5123123, at *2 (N.D.N.Y. Aug. 31, 2020). “Courts in this Circuit have consistently admitted convictions over ten years of age when the prior crimes involved falsification and the credibility of the testifying witness was crucial to the outcome of the current case.” Cerminaro, 2021 WL 2778572, at *3; accord Brown, 606 F.Supp.2d 306, 312 (“Although all of these factors are relevant, prime among them is the first factor, i.e., whether the crime, by its nature, is probative of a lack of veracity.”).

Applying these factors to the facts and circumstances of this case, the Court concludes the probative value of Gardner's criminal history substantially outweighs its prejudicial effect. See Fed. R. Evid. 609(b)(1); Zinman, 983 F.2d at 434. First, Gardner's convictions hold substantial impeachment value because they implicate his trustworthiness. See Brown, 606 F.Supp. at 311; see generally Fed. R. Evid. 609(a)(2) (indicating that witness's “character for truthfulness” can be attacked with evidence of convictions involving “a dishonest act or false statement”). In 2008, Gardner was convicted on twelve counts of criminal possession of a forged instrument in the second degree, see New York Penal Law § 170.25, ^[3] and twelve counts of offering a false instrument in the first degree, see New York Penal Law § 175.35.^[4] (Dkt. No. 99 at 1.) Both crimes involve acting “with the intent to defraud” another. See New York Penal Law § 170.25; see Id. at § 175.35. Acting with the intent to defraud another is dishonest conduct. The impeachment value of Gardner's prior convictions accordingly weighs in favor of admitting such evidence. See United States v. Puco, 453 F.2d 539, 543 (2d Cir. 1971) (“crimes which involve fraud or stealing reflect on honesty and integrity and thereby on credibility.”); see also Corcoran v. CHG-Meridian U.S. Fin., Ltd., No. 5:11-CV-1462 (MAD/DEP), 2014 WL 1976671, at *3 (N.D.N.Y. May 15, 2014) (concluding “a conviction for making a false statement to a federal officer is probative of a [witness's] propensity to tell the truth”).

Second, Gardner was convicted over a decade ago, and no party has produced evidence relevant to Gardner's truthfulness in the years following his convictions. The remoteness of this conviction weighs slightly against its admissibility. See Brisman v. Volpe, No. 9:15-CV-466 (MAD/TWD), 2018 WL 3691236, at *3 (N.D.N.Y. Aug. 3, 2018) (concluding the second factor weighed in favor of excluding evidence of a conviction that was “more than 20 years old”); Puco, 453 F.2d 539, 543 (same); accord Fed. R. Evid. 609(b).

Third the criminal conduct Gardner was convicted of in 2008 bears no resemblance to the conduct at issue in this case. See Brown, 606 F.Supp. at 311. Gardner's convictions from 2008 involve acting with the intent to defraud another, but his alleged conduct in this case involves assaulting and battering Plaintiff. In other words, Gardner's criminal conduct from 2008 “bears no resemblance to” the conduct alleged in this case. See Daniels v. Loizzo, 986 F.Supp. 245, 250 (S.D.N.Y. 1997). “The less similar the pending case to the prior conviction, the less prejudicial its admission is.” Stephen v. Hanley, No. 03-CV-6226 (KAM/LB), 2009 WL 1471180, at *5 (E.D.N.Y. May 21, 2009); see also Puco, 453 F.2d at 542 (“The potential for prejudice, moreover, is greatly enhanced where, as here, the prior...