Safdie v. City of New York

• Decision Date: 07 March 1988
• Citation: 525 N.Y.S.2d 650,138 A.D.2d 361
• Parties: Shelly SAFDIE, etc., et al., Appellants, et al., Plaintiff, v. CITY OF NEW YORK, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 650

525 N.Y.S.2d 650

138 A.D.2d 361

Shelly SAFDIE, etc., et al., Appellants, et al., Plaintiff, v. CITY OF NEW YORK, Respondent, et al., Defendants.

Supreme Court, Appellate Division Second Department.

March 7, 1988.

Stier & Bernstein, New York City (Emilio Nunez, of counsel; Alexander J. Wulwick on the brief), for appellants.

Peter L. Zimroth, Corp. Counsel, New York City (Pamela Seider Dolgow and Elizabeth

S. Natrella, of counsel), for respondent.

Before KUNZEMAN, J.P., and EIBER, HARWOOD and BALLETTA, Jr., JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death and conscious pain and suffering, the appeal is from so much of a judgment of the Supreme Court, Kings County (Hutcherson, J.), dated July 22, 1986, as, upon a jury verdict, was in favor of the defendant City of New York and against the appellants.

ORDERED that the judgment is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and the appellants are granted a new trial of their claims against the City of New York.

The trial court instructed the jury that if it found that the deceased's negligence caused or contributed to his death in a material way, the appellants may not recover, regardless of whether that negligence was great or slight. This instruction was clearly erroneous (see, CPLR 1411). Though the court properly instructed the jury, in its supplemental charge, that negligence on the deceased's part would not prevent recovery by the appellants but would only reduce the amount of damages, this did not serve to obviate the erroneous instruction, since that instruction was not "withdrawn and corrected in such explicit terms as to preclude an inference that the jury might have been influenced by it ( see, Smulczeski v. City Center of Music & Drama, 3 NY2d 498 [169 N.Y.S.2d 1, 146 N.E.2d 769]; Wunderlich v. Hipper, 35 AD2d 733 ; Tropp v. Equitable Life Assur. Soc. of U.S., 180 Misc 1072 )" ( Thrower v. Smith, 62 A.D.2d 907, 913, 406 N.Y.S.2d 13, affd. 46 N.Y.2d 835, 414 N.Y.S.2d 124, 386 N.E.2d 1091). The confusing nature of the charge precludes us from declaring this error harmless ( see, Russo v. Osofsky, 112 A.D.2d 926, 492 N.Y.S.2d 623).

Reversal is also required because the trial court refused to give a missing witness charge with respect to Dr. Elliot Gross, who at the time of the incident and the trial was Chief Medical Examiner of the City of New York, and was one of the doctors who performed an autopsy on...