Mercurio v. Dunlop, Ltd.
| Decision Date | 28 July 1980 |
| Citation | 430 N.Y.S.2d 140,77 A.D.2d 647 |
| Parties | Pasquale MERCURIO, Individually, etc., et al., Appellants, v. DUNLOP, LTD. et al., Defendants Third-Party Plaintiffs-Respondents; Cousin's Foreign Tire Corp., Defendant-Respondent; Rallye Motors, Inc., Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bloom & Amrod, Garden City (Robert A. Bloom, Garden City, of counsel), for appellants.
Curtis, Hart & Zaklukiewicz, Merrick (Reid A. Curtis and Wade T. Dempsey, Merrick, of counsel), for defendant-respondent and defendants third-party plaintiffs-respondents.
Before LAZER, J. P., and GIBBONS, GULOTTA and MARGETT, JJ.
MEMORANDUM BY THE COURT.
In a negligence and products liability action to recover damages for personal injuries, etc., plaintiffs appeal from (1) a judgment of the Supreme Court, Nassau County, entered June 22, 1978, which, inter alia, is in favor of defendants and against them, on a jury verdict, and (2) an order of the same court, dated November 9, 1978, which denied their motion to set aside the jury's verdict.
Judgment reversed, on the law, and new trial granted as to all parties and causes, with costs to abide the event.
Appeal from the order dismissed as academic.
The injured plaintiff, then an 18-year-old apprentice mechanic, lost the sight of his right eye when a tire he was attempting to mount on a rim exploded. As a result, he sued the tire manufacturer, its United States subsidiary and the wholesaler who supplied the tire to his employer. At the conclusion of the trial, the jury rendered a verdict in favor of the defendants. We are constrained to reverse and remand for a new trial.
The record quite palpably reveals that the behavior of defense counsel during the trial created an atmosphere which deprived plaintiffs of a fair trial. What was involved was not an isolated remark during questioning or summation, but a seemingly continual and deliberate effort to divert the jurors' and the court's attention from the issues to be determined.
During direct examination of the injured plaintiff, defense counsel stated, Two pages later in the record, and still on direct examination of the injured plaintiff, defense counsel stated concerning said plaintiff, "He is an interested witness * * * He is asking for a large sum of money."
On the next page, the following dialogue appears:
The defendants' attorney continued at some length outside the presence of the jury.
In addition, defense counsel made two baseless motions for a mistrial. All of this occurred during the direct examination of the first witness. Had it terminated after the court's extensive admonitions to both attorneys during the last mentioned fracas, it might have been excusable, but it was followed by other outbursts during the testimony of plaintiffs' expert. Thus:
An extensive colloquy followed in which the court severely admonished both attorneys and advised them that the next outburst would result in a...
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Smith v. Rudolph
...prejudicial and inflammatory to justify a new trial (id. at 886–887, 889 N.Y.S.2d 220 ).Likewise, in Mercurio v. Dunlop, Ltd. , 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dept.1980), the Second Department found similar conduct to have deprived the plaintiffs of a fair trial. There, the defense cou......
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...and deliberate effort to divert the jurors' and the court's attention from the issues to be determined ..." (Mercurio v. Dunlop, Ltd., 77 A.D.2d 647, 430 N.Y.S.2d 140 (1980)). Further, we find that this conduct of plaintiffs' trial counsel was more than mere trial tactics and was conduct "c......
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...from the issues to be determined' " Clarke v. New York City Tr. Auth., supra, at 277, 580 N.Y.S.2d 221, quoting Mercurio v. Dunlop, Ltd., 77 A.D.2d 647, 430 N.Y.S.2d 140. Further, Supreme Court erred in refusing to submit to the jury the threshold issue whether plaintiff suffered a serious ......
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Vassura v. Taylor
...the behavior of defense counsel during the trial created an atmosphere which deprived plaintiffs of a fair trial" (Mercurio v. Dunlop Ltd., 77 A.D.2d 647, 430 N.Y.S.2d 140). As in Mercurio, "[w]hat was involved [here] was not an isolated remark during questioning or summation, but a seeming......
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Attorney conduct
...allowing or refusing to allow a witness to answer, or ignoring a court’s ruling constitutes improper argument. Mercurio v. Dunlop, Ltd ., 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dept. 1980). §18:20 NEW YORK OBJECTIONS 18-4 Repeated admonitions by the court for arguing objections in the presence......
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Table of cases
...1990), § 10:20 Merchants Mut. Ins. Co. v. Arzillo, 98 A.D.2d 495, 472 N.Y.S.2d 97 (2d Dept. 1984), § 5:180 Mercurio v. Dunlop, Ltd., 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dept. 1980), § 18:20 Merenda v. Consolidated Rail Corporation, 248 A.D.2d 684, 670 N.Y.S.2d 869 (2d Dept. 1998), §§ 5:150,......
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...allowing or refusing to allow a witness to answer, or ignoring a court’s ruling constitutes improper argument. Mercurio v. Dunlop, Ltd ., 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dept. 1980). ATTORNEY CONDUCT §18:20 NEW YORK OBJECTIONS 18-4 Repeated admonitions by the court for arguing objection......
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...allowing or refusing to allow a witness to answer, or ignoring a court’s ruling constitutes improper argument. Mercurio v. Dunlop, Ltd ., 77 A.D.2d 647, 430 N.Y.S.2d 140 (2d Dept. 1980). Repeated admonitions by the court for arguing objections in the presence of the jury may be the basis fo......