| Rodriguez v City of New York |
| 2009 NY Slip Op 08600 [67 AD3d 884] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Rafael Rodriguez et al., Appellants, v City of New York,Defendant and Third-Party Plaintiff-Respondent, et al., Defendants and Third-Party Plaintiffs.Triad Corporation, Third-Party Defendant-Respondent. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, P.C., New York, N.Y. (Marcia Raicusof counsel), for defendant and third-party plaintiff-respondent. McMahon, Martine & Gallagher, LLP, Brooklyn, N.Y. (Patrick W. Brophy of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof Supreme Court, Kings County (Solomon, J.), dated November 19, 2007, which denied theirmotion pursuant to CPLR 4404 (a) to set aside, in the interest of justice and as inadequate, a juryverdict on the issue of damages awarding the plaintiff Rafael Rodriguez the sums of only$74,000 for past lost earnings and $26,000 for past pain and suffering, and for a new trial on theissue of damages.
Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion,with one bill of costs, those branches of the plaintiffs' motion which were pursuant to CPLR4404 (a) to set aside the jury verdict on the issue of damages in the interest of justice and for anew trial on that issue are granted, that branch of the motion which was pursuant to CPLR 4404(a) to set aside the jury verdict as inadequate is denied as academic, and the matter is remitted tothe Supreme Court, Kings County, for a new trial on the issue of damages.
On November 12, 1993 the plaintiff Rafael Rodriguez (hereinafter Rodriguez) was injuredwhen, while working at a construction site, he fell off a scaffold. Subsequently, Rodriguez andhis wife, suing derivatively, commenced the instant personal injury action. After Rodriguez wasawarded summary judgment on the issue of liability on his cause of action to recover damagesfor a violation of Labor Law § 240 (1), the matter proceeded to a trial on the issue ofdamages, after which a jury awarded Rodriguez the sums of $74,000 for past lost earnings and$26,000 for past pain and suffering.
The plaintiffs moved pursuant to CPLR 4404 (a), inter alia, to set aside the verdict in the[*2]interest of justice, and for a new trial on the issue ofdamages, maintaining that they were deprived of a fair trial by virtue of several erroneousevidentiary rulings, as well as improper conduct on the part of defense counsel and the trialcourt. We agree.
CPLR 4404 (a) provides that, "[a]fter a trial . . . by a jury, upon the motion ofany party or on its own initiative, the court may set aside a verdict . . . and. . . may order a new trial . . . in the interest of justice." A motionpursuant to CPLR 4404 (a) should not be granted unless the movant presents evidence toestablish that "substantial justice has not been done, as would occur, for example, where the trialcourt erred in ruling on the admissibility of evidence, there is newly-discovered evidence, orthere has been misconduct on the part of attorneys or jurors" (Gomez v Park Donuts, 249AD2d 266, 267 [1998] [citations omitted]; see Lucian v Schwartz, 55 AD3d 687 [2008]; Langhorne v County of Nassau, 40AD3d 1045 [2007]). The interest of justice thus requires a court to order a new trial wherecomments by an attorney for a party's adversary deprived that party of a fair trial or undulyinfluenced a jury (see Huff vRodriguez, 64 AD3d 1221, 1223 [2009]).
Specifically, in his opening statement, defense counsel stated that Rodriguez, who allegedthat he was unable to work as a result of back injuries he sustained from the fall, was disableddue to "lung problems," sepsis, and his treatment with interferon for hepatitis C. In hissummation, defense counsel referred to the testimony of Rodriguez's vocational economicanalyst as "totally incredible" and a "kind of tweaker." Additionally, during the course ofsummarizing the testimony of an economic analyst retained by the plaintiffs, defense counselexclaimed, "[w]hat a liar," when describing the analyst and the analyst's statement that he did nothave a calculator with him at trial. In addition, defense counsel rhetorically asked "[w]hy do theylie to you?" when telling the jury that the case was about fair and adequate compensation for theinjuries Rodriguez sustained in the accident. Defense counsel went on to state: "It's not a lottery.It's not a game. It's not 'here's the American dream, come over here, fall off a scaffold, get amillion dollars.' " Finally, defense counsel also told the jury that, from the beginning of histestimony, Rodriguez's treating chiropractor was "not being honest, is not being truthful."
Such comments, which were not isolated, were plainly prejudicial and designed to deprivethe plaintiffs of their right to a fair trial (see Brooks v Judlau Contr., Inc., 39 AD3d 447, 449 [2007],revd on other grounds 11 NY3d 204 [2008]; see also McArdle v Hurley, 51 AD3d 741, 743 [2008]; Vazquez v Costco Cos., Inc., 17 AD3d350, 352 [2005]). The underlying principle is that litigants are entitled, as a matter of law, toa fair trial free from improper comments by counsel or the trial court (see e.g., DeCrescenzo v Gonzalez, 46AD3d 607, 608 [2007]). The comments by defense counsel were inflammatory and undulyprejudicial, and should have been precluded by the trial court (see O'Neil v Klass, 36 AD3d 677,677-678 [2007]; Pagano v Murray, 309 AD2d 910, 911 [2003]). In Pagano vMurray, we held that comments similar to those of the defense counsel here were"particularly improper and unbecoming because [the defendant] offered no expert witness on hisbehalf" (id. at 911; see alsoGrasso v Koslowe, 38 AD3d 599 [2007]).
Defense counsel, in his opening statement, commented that Rodriguez had come down withsepsis, "which is an incredibly dangerous blood borne infection." The plaintiffs' counselobjected, arguing that there would be no testimony with regard to that issue or condition. Thetrial court overruled the objection and went on to comment about Rodriguez's assorted otherunrelated medical conditions.
Later, during the defendants' cross-examination of Rodriguez, the plaintiffs objected to thequestion of whether Rodriguez was familiar with the radiographs of his lower back. Rodriguezresponded that he did not recall. The trial court overruled the objection and said, in the presenceof the jury: "Counselor, again, it's subject to connection. It's a big problem you have here."
These statements, taken together with certain other comments made by the trial court, evincea course of conduct by which the trial court unduly injected itself into the cross-examination (see O'Brien v Barretta, 1 AD3d330, 332 [2003]; Mantuano v Mehale, 258 AD2d 566, 567 [1999]; Gerichten vRuiz, 80 AD2d 578 [1981]), thus further serving to deprive the plaintiffs of a fair trial (see Butler v New York City Hous.Auth., 26 AD3d 352, 353-354 [2006]; Vazquez v Costco Cos., Inc., 17 AD3d at352; cf. Huff v Rodriguez, 64 AD3d at 1223), a fundamental right to which all litigants,regardless of the merits of their case, are entitled (see DeCrescenzo v Gonzalez, 46AD3d at 608; Desinor v New York City Tr. Auth., [*3]34AD3d 521 [2006]; Habenicht v R. K. O. Theatres, 23 AD2d 378, 379 [1965];Salzano v City of New York, 22 AD2d 656, 657 [1964]). These troublesome commentscreated an atmosphere in which there was a significant probability that the jury was distractedfrom the issues presented in the case and, hence, a new trial is warranted on this ground as well(see DeCrescenzo v Gonzalez, 46 AD3d at 608).
The trial court also erred in ruling that the plaintiffs' counsel could not utter the word"disability" in front of the jury, while permitting defense counsel to use that word in front of thejury with seeming impunity.
In addition, since it was established that the medical records of Rodriguez's treatingphysician were business records made in the ordinary course of business, the trial court shouldhave allowed those records into evidence (see Wilbur v Lacerda, 34 AD3d 794, 795 [2006]; see alsoCrisci v Sadler, 253 AD2d 447, 449 [1998]; CPLR 4518). Accordingly, the plaintiffs weredeprived of a fair trial by this improper evidentiary ruling as well, which provides a further basison which a new trial in the interest of justice is warranted (see Langhorne v County ofNassau, 40 AD3d at 1048; Durant vShuren, 33 AD3d 843, 844 [2006]; Stevens v Atwal, 30 AD3d 993, 994 [2006]).
In light of our determination, we do not reach the plaintiffs' remaining contentions. Mastro,J.P., Covello, Balkin and Austin, JJ., concur.