| McArdle v Hurley |
| 2008 NY Slip Op 04480 [51 AD3d 741] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Barbara McArdle, Appellant, et al., Plaintiff, v PatriciaHurley, Respondent. |
—[*1] Boeggeman, George & Corde, P.C., White Plains, N.Y. (Cynthia Dolan of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiff Barbara McArdleappeals from a judgment of the Supreme Court, Westchester County (LaCava, J.), dated October18, 2006, which, upon a jury verdict on the issue of damages awarding her the principal sums ofonly $40,000 for past pain and suffering and only $2,000 for future medical expenses, andawarding no damages for past and future lost earnings, past medical expenses, and future painand suffering, is in favor of her and against the defendant in the principal sum of only $42,000.
Ordered that the judgment is reversed, on the law and in the exercise of discretion, withcosts, and the plaintiff Barbara McArdle is granted a new trial on the issue of damages.
On November 12, 2002, the plaintiff Barbara McArdle (hereinafter the plaintiff), age 47, aSpecial Agent for the Federal Bureau of Investigation, was struck by a car in a cross walk, andpropelled 10 feet. She was hospitalized after the accident. Thereafter, on December 16, 2002, sheunderwent surgery to repair a tear in the rotator cuff tendon in her left shoulder. On March 31,2003, she underwent surgery to realign her kneecap, and two screws were inserted to hold herkneecap in place.
In January 2004 the plaintiff was authorized to return to work on restricted duty. OnNovember 15, 2004, she had additional surgery to remove the screws in her left knee becausethey were causing pain. On December 30, 2005, she had additional surgery on her left knee. Hertotal medical expenses amounted to $35,638.84. The plaintiff submitted evidence that, as a resultof her injuries and the restrictions in her duties, she was directed to retire from her position at herearliest retirement date in November 2007.[*2]
The jury limited the plaintiff's award for past pain andsuffering to $40,000, declined to award her any damages for past medical expenses or past lostearnings, awarded her the sum of $2,000 in future medical expenses, and declined to award herany damages for future pain and suffering or lost earnings. On appeal, the plaintiff contends, interalia, that the conduct of the defense counsel deprived her of a fair trial.
At trial, defense counsel, over objection, cross-examined the plaintiff about her husband'spension as a retired police officer on disability pay. The objection was overruled. Defensecounsel asked the plaintiff whether she and her husband discussed "the fact that he was collectingthree quarters [pay] tax-free and he was also able to work . . . full-time at St.Barnabas [Hospital] and do all these other consultant things as well."
During the testimony of the plaintiff's economist, defense counsel again addressed the factthat the plaintiff's husband "retired from the [New York City Police Department, hereinafterNYPD] on a disability." The economist replied that that was not relevant. Nevertheless, defensecounsel was permitted to ask, over objection, whether the plaintiff's "family income. . . for him [was] 75 percent and it's tax-free." After the economist stated "That iscorrect," defense counsel readdressed this issue and asked the economist if he "look[ed] at the taxreturns to see what kind of money he is making in addition to his disability pension?" and theeconomist replied "No. I was asked to focus on [the plaintiff]."
Thereafter, defense counsel, in summation, argued over objection that the plaintiff is"snowing you" when she testified that she intended to work until mandatory retirement and neverintended to retire early. After counsel's objection was overruled on the ground that it was"comment," defense counsel argued that the plaintiff's husband "maxed out on the NYPD systemin terms of what he could do" and the plaintiff's claims against the defendant complaint were "alldesigned for her to max out in the civil justice system. That's what this case is about."
The inflammatory conduct of defense counsel, including his use of the plaintiff's husband'sdisability retirement as evidence that her entire family were seeking to "max out in the civiljustice system," so contaminated the proceedings as to deprive the plaintiff of a fair trial (see Brooks v Judlau Contr., Inc., 39AD3d 447 [2007]; Vassura v Taylor, 117 AD2d 798 [1986]; Bagailuk v Weiss,110 AD2d 284 [1985]). Accordingly, the plaintiff is entitled to a new trial with respect todamages.
The plaintiff's remaining contentions need not be addressed in light of our determination.Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.