In a December 22, 2010 decision by Justice Bransten the court allowed the plaintiff to use statistical sampling to present evidence on liability and damages on its causes of action sounding in fraud and breach of contract. The litigation stemmed from mortgage backed securities sold by Countrywide and its affiliates.
Defendants first argued that the motion, brought as a motion in limine, was premature. The court found that under the Commercial Division Rules the motion could be made at anytime up to ten days before the pre-trial conference and that the motion wasn’t otherwise barred by New York common law. The court then applied the same test which is applied for other “scientific evidence” and found that statistical sampling was an appropriate method by which the plaintiffs could present their claims, and that at trial defendants could also present evidence contrary to plaintiff’s presentation.
MBIA Ins. Corp., v Countrywide, Sup Ct, New York County, December 22, 2010, Bransten, J., Index No. 602825/08.