| Herman v Moore |
| 2015 NY Slip Op 09352 [134 AD3d 543] |
| December 17, 2015 |
| Appellate Division, First Department |
[*1]
| Sallie E. Herman, Appellant, v Gerald J. Mooreet al., Respondents. |
Pirrotti & Glatt Law Firm PLLC, Scarsdale (Anthony Pirrotti, Jr. Of counsel),for appellant.
Morris Duffy Alonso & Faley, New York (Arjay G. Yao and Kenneth E. Pitcoffof counsel), for respondents.
Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered onor about July 9, 2014, upon a jury verdict in defendants' favor, unanimously reversed, onthe law, without costs, and the matter remanded for a new trial.
Plaintiff claims that she sustained a permanent, consequential limitation of her neckand back as a result of a motor vehicle accident. The accident occurred while she was onher way to go apple picking with other members of her Jehovah's Witness congregation.Four years before the motor vehicle accident, plaintiff had injured her back when abookcase fell on her. She saw an orthopedist one time in connection with the earlierinjury, and treated with a physical therapist for one month.
Plaintiff claims that there were numerous errors made by the court during the trial,and that the court demonstrated a decided bias against her. Two of the statements andrulings to which plaintiff objects arose out of plaintiff's religious affiliation. Before thetrial commenced, defendants moved to preclude plaintiff from highlighting that she was aJehovah's Witness. The court granted the motion, and directed plaintiff to testify onlythat she was with "friends" when the accident occurred. The court did, however, makeclear that plaintiff could testify that, because of her injuries, she was unable to participatein door-to-door proselytizing.
After the jury retired, one of the jurors who had originally been an alternate but wasnow on the deliberating panel, alerted the court that he had discerned from plaintiff'stestimony that she was a Jehovah's Witness, and that he was a Jehovah's Witness as well.He testified under questioning from the court and from counsel for plaintiff anddefendants that he might be "a little more likely" to believe plaintiff because of theknowledge he had about her religion. Based on that statement, the court granteddefendants' counsel's request to disqualify the juror. In questioning the juror, the courtreferred to plaintiff's religious affiliation.
Plaintiff also takes issue with the court's decision to give a missing witness charge.The charge was related to her testimony that, in connection with the earlier accident, shesaw a Dr. Rose, an orthopedist who referred her to physical therapy. Plaintiff did not callDr. Rose as a witness, nor did she introduce into evidence any of the medical recordsgenerated by him or the physical therapy provider. It is unclear from the record whendefendants requested the missing witness charge related to Dr. Rose.
Plaintiff requested a similar charge with respect to Dr. Rene Elkin, a neurologist whodefendants called as their expert witness. Dr. Elkin testified that she generated a reportconcluding that plaintiff's neck and back injuries were degenerative in nature and werenot causally related to the accident. Prior to trial, plaintiff had served a subpoena on Dr.Elkin requesting that she bring all of the records that she relied on in preparing thereport, including notes she made in connection with her physical examination of plaintiff.However, Dr. Elkin testified at trial that she no longer had the notes. Plaintiff requestedthat the court issue a missing documents charge with respect to Dr. Elkin's notes. Thecourt denied the request to charge, [*2]stating that Dr.Elkin had testified that the notes were subsumed in her report.
While we are disturbed by some of the court's actions in conducting the trial, we findthat, on the whole, it did not demonstrate a level of bias warranting reversal (see Pickering v Lehrer, McGovern,Bovis, Inc., 25 AD3d 677, 679 [2d Dept 2006]). However, as discussed below,there are other errors which do require a new trial.
The party seeking a missing witness charge has the burden of promptly notifying thecourt when the need for such a charge arises (see Spoto v S.D.R. Constr., 226AD2d 202, 204 [1st Dept 1996]). The purpose of imposing such a burden is, in part, topermit the parties "[to] tailor their trial strategy to avoid substantial possibilities ofsurprise" (People v Gonzalez, 68 NY2d 424, 428 [1986] [internal quotationmarks and citation omitted]). Once the party requesting the charge meets its initialburden, the party opposing the request can defeat it by demonstrating that, among otherthings, the witness was not available, was outside of its control, or the issue about whichthe witness would have been called to testify is immaterial (id.).
Here, the record does not reflect when defendants asked for a missing witness chargefor Dr. Rose. This presents the possibility that they did not do so until after plaintiffpresented her case. Had that been so, plaintiff would have lost any opportunity to accountfor Dr. Rose's absence, argue that plaintiff did not have the requisite control over him, orattempt to procure his appearance. Accordingly, since there is no indication thatdefendants met their burden, we find that the missing witness charge was improperlygiven.
In any event, the court's stated basis for the missing witness charge wasunreasonable. The court explained to the jury that it could infer, because plaintiff did notcall Dr. Rose, that he would have testified that the current pain plaintiff was experiencingwas related to the accident from 2003, when a bookcase fell on her, and not to the motorvehicle accident. However, the court's surmise that the previous injury had not fullyresolved was speculative. Indeed, plaintiff testified that she received only one month oftreatment for that injury, and never made any statement even suggesting that the injuriesallegedly caused by defendants were actually the sequelae of an earlier trauma.Accordingly, there would have been no purpose for Dr. Rose to testify. The inference thecourt invited the jury to make simply had no basis in fact, and, by giving the missingwitness charge, the court prejudiced the plaintiff. The lack of justification for the missingwitness charge is made even more evident by the court's refusal to charge the jury that theaccident aggravated an earlier injury. In other words, had the court truly believed that abasis existed to believe that plaintiff still suffered from injuries suffered in the bookcaseaccident, it would have been inconsistent not to charge the jury that it could find that thevehiclar accident aggravated those injuries.
Finally, while Dr. Elkin did not, as plaintiff suggests, testify that she "destroyed" hernotes, she did concede that she did not comply with the subpoena, which required her tobring with her to court the notes that she used in generating her report on behalf ofdefendants. The failure to produce those notes affected plaintiff's ability to cross-examinedefendants' expert and was fundamentally unfair to plaintiff. At the least, it would havebeen appropriate for the court to issue an adverse inference charge (see Minaya v Duane Reade Intl.,Inc., 66 AD3d 402, 403 [1st Dept 2009]). That Dr. Elkin testified that the noteswere subsumed in the report is of no moment. Plaintiff was entitled to independentlyinvestigate that claim without having to rely on Dr. Elkin's own assurances that the noteswere themselves of no probative value. Defendant argues that, before plaintiff requestedthe missing documents charge, but after the jury had been impaneled, the court offeredplaintiff the option of marking the case off the calendar so she could enforce thesubpoena. However, because the parties had already selected a jury, this was not alegitimate remedy. Concur—Mazzarelli, J.P., Renwick, Andrias andManzanet-Daniels, JJ.