Caldwell v. Cablevision Systems Corp., 86 A.D.3d 46

Defendant Cablevision installed a trench and test pits on Benefield Blvd., Peekskill, for fiber-optic cable, creating a dangerous condition alleged by plaintiffs.
Injured plaintiff Caldwell testified she tripped on a dip in a test pit; defendant called Dr. Barry Krosser to describe the accident per his notes, not from personal recollection.
Dr. Krosser was paid $10,000 for lost time, and plaintiffs cross-examined regarding this payment.
Trial court allowed cross-examination and summations to address compensation but declined to give an explicit jury instruction on compensation bias.
Jury found defendant negligent but not a substantial factor; judgment dismissed the complaint; plaintiffs appealed arguing admissibility or bias instruction errors.
Court held that the $10,000 payment did not render Dr. Krosser’s testimony inadmissible, but the lack of a specific bias instruction was error, not reversible under the circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the $10,000 payment to a fact witness render testimony inadmissible?	Krosser was paid more than statutory fees, implying bias and illegality.	Payment was reasonable compensation for lost time, not a fee for testimony.	No admissibility bar; testimony admissible notwithstanding payment.
Whether the jury should have received a specific instruction on potential bias from compensation?	A specific bias instruction is warranted when a paid fact witness may be biased.	General credibility charge suffices; no special instruction necessary in all cases.	Yes, a specific instruction was warranted; error occurred.
Was the absence of a specific instruction prejudicial under the circumstances?	The jury could have been misled about credibility due to disproportionate payment.	Dr. Krosser’s testimony lacked personal recollection and was largely note-based; minimal credibility issue.	Not prejudicial in this case; reversal not required.

Clifford v. Hughes, 139 App. Div. 730 (1910) (public policy against paying fact witnesses more than statutory fees)
Matter of Schapiro, 144 App. Div. 1 (1911) (public policy against agreements to pay more than statutory fees)
Matter of Robinson, 151 App. Div. 589 (1912) (witness compensation policy; credibility concerns)
People v. Jackson, 74 N.Y.2d 787 (1989) (need for bias instruction when witness receives leniency or favorable deal)
Hoffa v. United States, 385 U.S. 293 (1967) (credibility testing via cross-examination; jury credibility assessment)