Devine v. Keller

Decision Date21 April 1969
Citation32 A.D.2d 34,299 N.Y.S.2d 249
PartiesRosemary DEVINE, Respondent, v. Nicholas KELLER et al., Appellants.
CourtNew York Supreme Court — Appellate Division

Silverman & Silverman, Schenectady (S. Robert Silverman, Schenectady, of counsel), for respondent.

Mullarkey, Horigan & Harrigan, Amsterdam (Richard T. Horigan, Amsterdam, of counsel), for appellants.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GREENBLOTT, JJ.

AULISI, Justice.

Appeal is taken (1) from a judgment of the Supreme Court in favor of plaintiff, entered April 18, 1968, in Schenectady County, upon a verdict rendered at a Trial Term, and (2) from an order of said Court, entered October 10, 1968, which denied defendant's motion to set aside the verdict of the jury and for a new trial.

This is an action for personal injuries sustained as the result of an automobile accident in the City of Albany on November 15, 1965. Defendant contends that certain remarks made by plaintiff's counsel during his summation constituted reversible error. These were objected to by defendant's counsel, but no record was made as to the objections, the remarks which precipitated them, or the Trial Court's rulings thereon. There is in the record, however, a complete transcript of the argument upon the motion to set aside the verdict and defendant's attorney's enumeration of the exceptions and objections taken during plaintiff's summation met with no substantial contradiction by the trial judge or defendant's counsel.

It is apparent that the defense requested a stenographic record at the time of the objections of the subsequent proceedings, including the allegedly improper statements. Section 295 of the Judiciary Law states in part that the 'stenographer shall take complete stenographic notes of each ruling or decision of the presiding judge, and when the trial is by jury each and every remark or comment of such judge during the trial, when requested so to do by either party, together with each and every exception taken to any such ruling, decision, remark or comment by or on behalf of any party to the action.' In denying defendant's request that the objections and exceptions and the rulings thereon be recorded, the trial court apparently misapprehended the meaning and the scope of our rule that no summations shall be taken down by the stenographer unless prior to commencement of any summation request is made that all summations be recorded (Rule 2.04, Rules for Trial and Special Terms of Supreme Court, Third Judicial Department, 22 NYCRR 861.4). However, although no request was made by either party to have the summations taken, the Trial Court erred in refusing to have defendant's objections, together with the related statements and rulings, recorded as requested at the time. (People v. Fearon, 13 N.Y.2d 59, 242 N.Y.S.2d 33, 192 N.E.2d 8; Pacific Bank v. Worth, 220 App.Div. 830, 222 N.Y.S. 867; Paffen v. City of New York, 176 App.Div. 423, 162 N.Y.S. 723; Riccardi v. Rogosin, 131 Misc. 46, 225 N.Y.S. 657.) An older but nonetheless respectable authority, 'Cross Examination and Summation', Balicer (1948), also hits the problem. After noting that counsel should object at the time offending statements are made and ask for rulings at that time (see also as to this 8 Carmody-Wait 2d, New York Practice, § 56:140), it is stated: 'He should also request to have the improper statement recorded by the stenographer for, if the statements are not in the record, the appellate court cannot review them on appeal.' (Sec. 77, pp. 285, 286, citing in support Niles v. New York Cent. & Hudson Riv. R.R. Co., 13 App.Div. 549, 43 N.Y.S. 734.)

Plaintiff's argument that since any remarks objected to could not subsequently be recorded 'verbatim' only reinforces the reason and necessity for transcribing the objectionable items at the time requested when they are most likely to be accurately reproduced. It is extremely unlikely that at that time either attorney will dispute a truthful recital of his remarks, in the presence of the trial judge and jurors who heard them. Since there is no proper record of the statements alleged to be objectionable for us to review, we have no alternative but to reverse and grant a new trial. The difficulty would not be completely obviated...

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8 cases
  • Molinari v. Conforti & Eisele, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • November 12, 1976
    ... ... extent of previous injuries are proper subjects of cross-examination, the development of such evidence should be limited to that issue only (Devine v. Keller, 32 A.D.2d 34, 37, 299 N.Y.S.2d 249, 252). It may not induce the inference of negligence or demonstrate that the plaintiff is litigious ... ...
  • Corbett v. Brown
    • United States
    • New York Supreme Court — Appellate Division
    • April 21, 1969
  • Robinson v. Ferens
    • United States
    • New York Supreme Court — Appellate Division
    • November 3, 1969
    ... ...         In our opinion, the trial court committed reversible error in refusing to have the summations recorded (cf. Devine v. Keller, 32 A.D.2d 34, 36, 299 N.Y.S.2d 249, 252; Croix v. New York City Tr. Auth., 28 A.D.2d 691, 281 N.Y.S.2d 224; Sharp v. City of Hornell, 12 ... ...
  • Tormos v. Rivera
    • United States
    • New York Supreme Court — Appellate Division
    • November 23, 1970
    ... ... Johnson, 26 A.D.2d 552, 271 N.Y.S.2d 106; Devine v. Keller, 32 A.D.2d 34, 299 N.Y.S.2d 249). Defendant's cross-examination of this plaintiff as to the aforementioned two subsequent accidents bore, ... ...
  • Request a trial to view additional results
9 books & journal articles
  • Summation
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2018 Contents
    • August 2, 2018
    ...to the action. Jud L §295; Rice v. Ninacs , 34 A.D.2d 388, 312 N.Y.S.2d 246 (4th Dept. 1970) (summations not recorded); Devine v. Keller , 32 A.D.2d 34, 299 N.Y.S.2d 249 (3d Dept. 1969). A trial court’s failure to order recording of summations when speciically requested by a litigant’s atto......
  • Summation
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2015 Contents
    • August 2, 2015
    ...the action. Jud L § 295; Rice v. Ninacs , 34 A.D.2d 388, 312 N.Y.S.2d 246 (4th Dept. 1970) (summations not recorded); Devine v. Keller , 32 A.D.2d 34, 299 N.Y.S.2d 249 (3d Dept. 1969). A trial court’s failure to order recording of summations when specifically requested by a litigant’s attor......
  • Summation
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2021 Contents
    • August 2, 2021
    ...to the action. Jud L §295; Rice v. Ninacs , 34 A.D.2d 388, 312 N.Y.S.2d 246 (4th Dept. 1970) (summations not recorded); Devine v. Keller , 32 A.D.2d 34, 299 N.Y.S.2d 249 (3d Dept. 1969). A trial court’s failure to order recording of summations when speciically requested by a litigant’s atto......
  • Summation
    • United States
    • James Publishing Practical Law Books Archive New York Objections - 2014 Contents
    • August 2, 2014
    ...the action. Jud L § 295; Rice v. Ninacs , 34 A.D.2d 388, 312 N.Y.S.2d 246 (4th Dept. 1970) (summations not recorded); Devine v. Keller , 32 A.D.2d 34, 299 N.Y.S.2d 249 (3d Dept. 1969). A trial court’s failure to order recording of summations when specifically requested by a litigant’s attor......
  • Request a trial to view additional results

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