Chappotin v. City of New York

Decision Date06 December 2011
Citation933 N.Y.S.2d 856,90 A.D.3d 425,2011 N.Y. Slip Op. 08793
PartiesAndre P. CHAPPOTIN, Plaintiff–Respondent, v. CITY OF NEW YORK, Defendant,Consolidated Edison Companies, Defendant–Appellant.
CourtNew 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 [h]ere's someone who doesn't have a concern about getting medical care. He doesn't have a concern about working.”

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:

MANZANET–DANIELS, J. (dissenting)

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 [h]ere's someone who doesn't have a concern about getting medical care. He doesn't have a concern about working.” Defense counsel made additional comments including “This is someone who understands how to make his way in the world. He has come here with a story about falling here.” Counsel argued, “I submit to you that the truth that you heard from [plaintiff] stopped by the time he was picked up on the corner of 112th Street and Third Avenue. And that everything from that time forward has been designed to create and advance a lawsuit. Money is a huge motivator. Now, Lord knows it's true, that he is looking for my money. And I don't want to give it. And you shouldn't want to give it when you really evaluate how this case has come to you.” Defense counsel further remarked, “This is a classic case. You have been lied to by the plaintiff. There is no nice way to say this. You have been lied to by the plaintiff and his goal is to obtain money.”

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] [defense counsel's remark that plaintiff's husband's disability retirement, with...

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7 cases
  • Bertram v. N.Y. Presbyterian Hosp.
    • United States
    • New York Supreme Court
    • 8 Mayo 2013
    ...ATTORNEY IN HIS SUMMATION While defendant's attorney was permitted to attack Dr. Fethke's credibility, see Chappotin v. Citv of New York, 90 A.D.3d 425, 426 (1st Dep't 2011); Hancock v. 330 Hull Realty Corp., 225 A.D.2d 365 (1st Dep't 1996); Bianco v. Flushing Hosp. Med. Ctr., 79 A.D.3d 777......
  • Gregware v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • 4 Agosto 2015
    ...nature of [a party's evidence], such remarks do not deprive the [opposing party] of a fair trial” (Chappotin v. City of New York, 90 A.D.3d 425, 426, 933 N.Y.S.2d 856 [1st Dept.2011], lv. denied 19 N.Y.3d 808, 2012 WL 2428540 [2012] ). At the end of a lengthy trial, it may be inevitable tha......
  • Acosta v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • 23 Agosto 2017
    ...trial" ( Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 163, 952 N.Y.S.2d 26 [emphasis omitted], quoting Chappotin v. City of New York, 90 A.D.3d 425, 426, 933 N.Y.S.2d 856 ). At the same time, a trial court may properly limit an attorney from commenting about matters that are not in ev......
  • Lopez v. City of N.Y.
    • United States
    • New York Supreme Court — Appellate Division
    • 30 Marzo 2021
    ...community’." Trial counsel is afforded wide latitude in presenting arguments to a jury on summation ( Chappotin v. City of New York, 90 A.D.3d 425, 426, 933 N.Y.S.2d 856 [1st Dept. 2011], lv denied 19 N.Y.3d 808, 2012 WL 2428540 [2012] ). However, counsel may not engage in deliberate or per......
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15 books & journal articles
  • Summation
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • 2 Agosto 2014
    ...review. Selzer v. New York City Transit Authority , 100 A.D.3d 157, 952 N.Y.S.2d 26 (1st Dept. 2012); Chappotin v. City of New York, 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dept. 2011); Penn v. Amchem Prods. , 73 A.D.3d 493, 903 N.Y.S.2d 1 (1st Dept. 2010); Rodriguez v. City of New York , 67 A......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • 2 Agosto 2015
    ...877 N.Y.S.2d 579 (4th Dept. 2009), § 17:15 Chamberlain v. Iba, 181 N.Y. 486, 74 N.E. 481 (1905), § 5:180 Chappotin v. City of New York , 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dept. 2011), §§ 19:40, 19:110 Cheek v. County of Nassau , 23 A.D.3d 599, 805 N.Y.S.2d 633 (2d Dept. 2005), § 7:90 Che......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • 2 Agosto 2014
    ...877 N.Y.S.2d 579 (4th Dept. 2009), § 17:15 Chamberlain v. Iba, 181 N.Y. 486, 74 N.E. 481 (1905), § 5:180 Chappotin v. City of New York , 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dept. 2011), §§ 19:40, 19:110 Cheek v. County of Nassau , 23 A.D.3d 599, 805 N.Y.S.2d 633 (2d Dept. 2005), § 7:90 TAB......
  • Attorney conduct
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2019 Contents
    • 2 Agosto 2019
    ...’s treating physician “was the ‘go-to’ doctor in Sufolk County for patients who wished to stop working”. Chappotin v. City of New York , 90 A.D.3d 425, 933 N.Y.S.2d 856 (1st Dept. 2011). Defense counsel’s inappropriate remarks such as referring to the plaintif as a “man who has played the s......
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