COURT ERRED WHEN IT FOUND WITNESS WAS “UNAVAILABLE”
Back in 2014, Mr. Awad leased the ground floor of his property to Sandwich Heaven, which assigned the lease in 2015 to Tio Deli. In October of 2015, Tio and Awad entered into a lease which had a term of 15 years. The following month, Awad sold the building.
The purchasers thereafter filed a case with the Kings County Supreme Court declaring the Tio Deli lease void. And during the trial of the matter, Awad suddenly became ill and was taken to the hospital. For some reason, the presiding judge informed the litigants that “[a]n ambulance has been called and there is no indication of whether [Awad] will be available in the future." The judge then summarily decided that Awad was an “unavailable witness,” struck his trial testimony from the record, and allowed the use of his deposition testimony.
After the trial court found the lease void, Tio Deli appealed to the Appellate Division, Second Department, which thought that the court below had acted “improvidently” in this case.
Apparently, there was “no information in the record regarding the nature of Awad's illness or the treatment he received, or whether he was hospitalized and for how long. Thus, the Supreme Court's sua sponte determination that Awad was unavailable to testify due to sickness or infirmity lacked support….”
Because Awad’s testimony “pertained directly to the central issue to be resolved at trial, the [judge's] error was not harmless.” And as a direct and proximate result, the underlying determination was reversed, and the matter sent back for a new trial.
Bet they cried uncle here ….
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DECISION