| Morency v Horizon Transp. Servs., Inc. |
| 2016 NY Slip Op 04029 [139 AD3d 1021] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| Marie Claude Morency, by Her Guardian ad Litem,Miriam Morency, et al., Appellants, v Horizon Transportation Services, Inc., etal., Defendants/Third-Party Plaintiffs-Respondents. Bhrags Home Care, Corp., et al.,Third-Party Defendants-Respondents. |
Burns & Harris, New York, NY (Seth A. Harris, Andrea V. Borden, and BrianJ. Isaac of counsel), for appellants.
Russo & Toner, LLP, New York, NY (Mitchell A. Greene and StevenBalson-Cohen of counsel), for defendants/third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal (1)from an order of the Supreme Court, Kings County (Edwards, J.), dated December 13,2013, which denied their motion pursuant to CPLR 4404 (a) to set aside a jury verdict infavor of the defendants on the issue of liability and for judgment as a matter of law or, inthe alternative, to set aside the verdict as contrary to the weight of the evidence or in theinterest of justice and for a new trial, and (2) from a judgment of the same court datedAugust 22, 2014, which, upon the jury verdict, and upon the order dated December 13,2013, is in favor of the defendants and against them, in effect, dismissing thecomplaint.
Ordered that the appeal from the order dated December 13, 2013, is dismissed; and itis further,
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, that branch of the plaintiffs' motion which was pursuant to CPLR 4404 (a) toset aside the verdict in the interest of justice and for a new trial is granted, the complaintis reinstated, the order dated December 13, 2013, is modified accordingly, and the matteris remitted to the Supreme Court, Kings County, for a new trial; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought upfor review and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).
[*2] The plaintiff Marie ClaudeMorency (hereinafter the injured plaintiff), a nonverbal individual with mental andphysical disabilities, allegedly fell while she was walking down the steps of an ambuletteowned by the defendant Horizon Transportation Services, Inc. (hereinafter Horizon).Thereafter, the injured plaintiff's sister, who served as the injured plaintiff's guardian adlitem, commenced this personal injury action on her sister's behalf and herselfindividually against Horizon and the driver of the ambulette. Following a trial, the juryrendered a 5-1 verdict in favor of the defendants on the issue of liability. The plaintiffssubsequently moved pursuant to CPLR 4404 (a) to set aside the jury verdict and forjudgment as a matter of law on the issue of liability or, in the alternative, to set aside theverdict as contrary to the weight of the evidence or in the interest of justice and for a newtrial. The Supreme Court denied the plaintiffs' motion. We reverse.
Pursuant to CPLR 4404 (a), a court "may set aside a verdict or any judgment enteredthereon and direct that judgment be entered in favor of a party entitled to judgment as amatter of law or it may order a new trial of a cause of action or separable issue where theverdict is contrary to the weight of the evidence [or] in the interest of justice" (CPLR4404 [a]; see Lariviere v NewYork City Tr. Auth., 131 AD3d 1130, 1132 [2015]). "A motion pursuant toCPLR 4404 (a) to set aside a verdict and for a new trial in the interest of justiceencompasses errors in the trial court's rulings on the admissibility of evidence, mistakesin the charge, misconduct, newly discovered evidence, and surprise" (Allen v Uh, 82 AD3d1025, 1025 [2011]; seeRodriguez v City of New York, 67 AD3d 884, 885 [2009]). In considering sucha motion, "[t]he Trial Judge must decide whether substantial justice has been done,whether it is likely that the verdict has been affected . . . and 'must look tohis [or her] own common sense, experience and sense of fairness rather than toprecedents in arriving at a decision' " (Micallef v Miehle Co., Div. ofMiehle-Goss Dexter, 39 NY2d 376, 381 [1976], quoting Weinstein-Korn-Miller, NYCiv Prac ¶ 4404.11; seeAllen v Uh, 82 AD3d 1025 [2011]).
Here, the Supreme Court erred in permitting the defendants to impeach thecredibility of the injured plaintiff's sister on direct examination by questioning her withrespect to her criminal history and prior bad acts (see generally Fisch, New YorkEvidence § 489 [2d ed]; Jerome Prince, Richardson on Evidence§ 6-421 [Farrell 11th ed]). "Indeed, it is well established that an adverseparty or a hostile witness may not be impeached on direct examination by evidence of hisor her criminal conviction[s]" (Miller v Galler, 45 AD3d 1325, 1326 [2007]; seeHanrahan v New York Edison Co., 238 NY 194, 197-198 [1924]; Skerencak vFischman, 214 AD2d 1020, 1020-1021 [1995]). Under the circumstances of thiscase, including the role played by the injured plaintiff's sister in commencing andmaintaining this action in her capacity as guardian ad litem and her additional role as afact witness, and given that the injured plaintiff was a nonverbal individual with mentaland physical disabilities, the repeated and extensive questioning of the injured plaintiff'ssister by defense counsel as to her past convictions and as to the underlying factualdetails of those crimes was an error grave enough in scope to have potentially affectedthe verdict (see Dance v Town of Southampton, 95 AD2d 442, 453 [1983];cf. CPLR 2002). Given the nature and quantity of such questioning, it was plainlyprejudicial and designed to deprive the plaintiffs of their right to a fair trial (seeRodriguez v City of New York, 67 AD3d at 885-886). Accordingly, the SupremeCourt should have granted that branch of the plaintiffs' motion which was pursuant toCPLR 4404 (a) to set aside the verdict in the interest of justice and for a new trial (seeDance v Town of Southampton, 95 AD2d at 453; cf. Skerencak v Fischman,214 AD2d at 1020-1021).
However, the plaintiffs' contention that the Supreme Court should have granted thatbranch of their motion which was pursuant to CPLR 4404 (a) to set aside the jury verdictand for judgment as a matter of law on the issue of liability is without merit (seeCohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Figueroa-Burgos v Bieniewicz,135 AD3d 810, 813 [2016]). Furthermore, the Supreme Court providently exercisedits discretion in denying that branch of the plaintiffs' motion which was to strike thedefendants' answer and the third-party complaint as a sanction for the defendants'spoliation of evidence (seeSamaroo v Bogopa Serv. Corp., 106 AD3d 713, 714 [2013]; Fossing v Townsend Manor Inn,Inc., 72 AD3d 884, 885-886 [2010]). Under the circumstances of this case, thelesser sanction imposed by the Supreme Court was warranted (cf. Samaroo v BogopaServ. Corp., 106 AD3d at 714). The plaintiffs' further contention, that thedefendants' answer should have been dismissed and the third-party complaint shouldhave been dismissed due to the defendants' alleged failure to timely disclose the identitiesof two individuals who were in the ambulette prior to the [*3]accident, is similarly without merit. Accordingly, we remitthe matter to the Supreme Court, Kings County, for a new trial.
In light of our determination, we do not reach the plaintiffs' remaining contention.Hall, J.P., Cohen, Miller and Barros, JJ., concur.