Chappotin v. City of New York
Decision Date | 06 December 2011 |
Citation | 933 N.Y.S.2d 856,90 A.D.3d 425,2011 N.Y. Slip Op. 08793 |
Parties | Andre P. CHAPPOTIN, Plaintiff–Respondent, v. CITY OF NEW YORK, Defendant,Consolidated Edison Companies, Defendant–Appellant. |
Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for appellant.
Greenberg & Stein, P.C., New York (Ian Asch of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered July 14, 2010, which granted plaintiff's motion to set aside the verdict in favor of defendant Consolidated Edison Companies on the ground that defense counsel's summation remarks deprived him of a fair trial, reversed, on the law, without costs, plaintiff's motion denied, and the verdict reinstated. The Clerk is directed to enter judgment dismissing the complaint as against Consolidated Edison Companies.
Trial counsel is afforded wide latitude in presenting arguments to a jury in summation ( see Califano v. City of New York, 212 A.D.2d 146, 154–155, 627 N.Y.S.2d 1008 [1995] ). Where defense counsel remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proof, such remarks do not deprive the plaintiff of a fair trial ( McDonald v. City of New York, 172 A.D.2d 296, 297, 568 N.Y.S.2d 108 [1991], lv. denied 78 N.Y.2d 861, 576 N.Y.S.2d 219, 582 N.E.2d 602 [1991] ). Defense counsel came close to overstepping that line when he argued, inter alia, referring to plaintiff, that “this is a man who has played the system going on 15 years,” noting that he had been on disability since 1995; that
However, plaintiff failed to object to 13 of the 15 comments of which he now complains. The court sustained the two objections that were actually made by plaintiff. Furthermore, the court gave a curative instruction. Plaintiff failed to preserve his objections and the verdict should be reinstated ( see Penn v. Amchem Prods., 73 A.D.3d 493, 903 N.Y.S.2d 1 [2010]; Wilson v. City of New York, 65 A.D.3d 906, 885 N.Y.S.2d 279 [2009]; Bennett v. Wolf, 40 A.D.3d 274, 835 N.Y.S.2d 148 [2007], lv. denied 9 N.Y.3d 818, 852 N.Y.S.2d 14, 881 N.E.2d 1201 [2008]; Smith v. Au, 8 A.D.3d 1, 777 N.Y.S.2d 298 [2004] ).
All concur except Manzanet–Daniels, J. who dissents in a memorandum as follows:
I would find that defense counsel overstepped the permissible line of advocacy. Defense counsel argued that plaintiff “is a man who has played the system going on 15 years,” further noting that plaintiff had been on disability since 1995; that Defense counsel made additional comments including Counsel argued, Defense counsel further remarked,
Counsel's assertions that plaintiff had “played the system,” “[had no] concern about working,” and had concocted a story about falling just so he could collect a windfall, were highly inflammatory and served to deprive plaintiff of a fair trial ( see McArdle v. Hurley, 51 A.D.3d 741, 743, 858 N.Y.S.2d 690 [2008] [...
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