Smith v. Rudolph

• Decision Date: 18 April 2017
• Citation: 151 A.D.3d 58,51 N.Y.S.3d 507
• Parties: Tynia SMITH, Plaintiff–Respondent, v. Francis V. RUDOLPH, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 58

51 N.Y.S.3d 507

Tynia SMITH, Plaintiff–Respondent,

v.Francis V. RUDOLPH, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

April 18, 2017.

Lawrence Heisler, Brooklyn (Timothy J. O'Shaughnessy of counsel), for appellants.

Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel), for respondent.

DAVID FRIEDMAN, J.P., DIANNE T. RENWICK, PAUL G. FEINMAN, JUDITH J. GISCHE, JJ.

RENWICK, J.

We all admire the work of an advocate who performs his or her duties with competence and diligence on behalf of a client. Competent and diligent representation, however, does not mean a lawyer should strive to "win" a case at all costs, if that means harming adversaries and their clients unreasonably and unnecessarily in the process and undermining the authority and integrity of the court. In this case, as fully explained below, defense counsel extended himself far beyond the permissible bounds of advocacy, on many occasions throughout the trial. Given defense counsel's woefully improper conduct, the trial court providently exercised its discretion in granting a new trial in the interest of justice.

Plaintiff Tynia Smith commenced this action to recover damages for personal injuries sustained during a pedestrian knock down accident. Plaintiff alleges that on the night of December 3, 2008, she was walking home with her coworker, after they had finished their evening shift at the Duane Reade Pharmacy located on Southern Boulevard, in the Bronx. The two women left the pharmacy and walked down Hunts Point Avenue until they reached the corner intersection of Bruckner Boulevard. They waited for the crosswalk light to be in their favor before beginning to cross.

The two young women were approximately half way across the street when a long articulated, New York City Transit Authority bus, operated by defendant Rudolph, made a left turn from Hunts Point Avenue onto Bruckner Boulevard and struck Smith in her back and right shoulder area. Plaintiff claims that the bus came from behind and to her right, out of her line of sight. Plaintiff also claims that the bus driver did not honk or do anything else to warn her that the bus was coming into the intersection. The impact knocked plaintiff to the ground, and the bus continued to move forward.

As a result of this accident, plaintiff suffered injuries to several discs in her lumbar spine and neck as well as torn menisci in her right knee, as reported by her treating physicians. Immediately following the accident, she was taken by ambulance to the emergency room at Lincoln Hospital where she complained of pain in her neck, back and knee. She was examined and prescribed oxycodone. After being discharged home, plaintiff determined that the pain was unbearable, despite the medication. Her leg was buckling and unable to support her, so she went to Westchester Square Hospital a few days later, where she got a shot for pain and was advised to see an orthopedist. Plaintiff then saw Dr. Ehrlich, an orthopedist, who examined her and ordered MRIs of her neck, back, and knee. After the MRIs, Dr. Ehrlich diagnosed her with a torn meniscus in her right knee, and he performed knee surgery in March 2009. After surgery, plaintiff said she continued to experience knee pain.

With regard to her back injuries, plaintiff began treatment with Dr. Guy in February 2009. Dr. Guy saw plaintiff again in October 2009, and observed persistent pain and limitations in the movement of her knee, neck, and lower back, despite physical therapy and knee surgery. Because trigger point injections and over-the-counter medications did not alleviate her back pain, plaintiff saw several doctors for possible back surgery. The first doctor did not find any need for back surgery, but Dr. Davy did. Based on a diagnostic discogram conducted on the lower back in November 2010, Dr. Davy determined that plaintiff had fissures, or small tears, inside the linings of the discs at the L2 to S1 levels, and that these fissures caused chemical radiculitis, a condition where the body's natural inflammatory response attacks the nerves radiating from the afflicted disc levels.

On January 31, 2011, Dr. Davy performed a percutaneous discectomy to remove some of the nucleus pulposus at the L2 to S1 disc levels, to relieve the pressure in the discs, and to bring down the chemical radiculitis. Based on his treatment and examinations, Dr. Davy concluded that plaintiff sustained multiple disc herniations from L2 through S1, L5 radicuolopathy, traumatic myofascial pain syndrome, and a meniscus tear as a result of the accident; that the injuries were significant and permanent; and that plaintiff would require further treatment.

At trial, the defense contested both liability and damages. The defense presented the testimony of the bus driver who testified that plaintiff and her friend entered the intersection when the pedestrian sign read "don't walk." The bus driver also claimed that plaintiff and her friend bumped into the bus and that the bus stopped at the moment of impact. In addition, the defense presented medical experts who opined that plaintiff's knee and back injuries resulting from the accident had been resolved by the end of 2009 and early 2010.

After trial, the jury found defendants 70% at fault, and plaintiff 30% at fault. With regard to the threshold question of serious injury, the jury found that plaintiff had sustained a "significant limitation" and 90/180–day injuries, but not a "permanent consequential limitation" injury. It awarded plaintiff $100,000 for past pain and suffering, $75,000 for past lost earnings, and $150,000 for past medical expenses, but zero dollars for future pain and suffering, future lost earnings, and future medical expenses. Thereafter, plaintiff moved for judgment notwithstanding the verdict on the issue of comparative negligence, and an additur on damages. Alternatively, she sought a new trial on the ground that "defense counsel engaged in repeated misconduct in front of the jury, thereby depriving plaintiff of a fair trial and the opportunity to properly present her case," and that the verdict was against the weight of the evidence.

Supreme Court granted plaintiff's motion for a new trial on the ground of improper conduct by defense counsel in the interest of justice. It denied the remaining requests for relief as moot. In ordering a new trial, the trial court concluded that defense counsel's conduct was "so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial." Also, such conduct "occurred in front of the jury, created a hostile atmosphere and persisted despite the court threatening to impose sanctions and to hold counsel in contempt."

The court then cited the multiple instances of defense counsel's misconduct: "frequent assertions of personal knowledge of facts in issue in violation of Rules of Professional Conduct, Rule 3.4(d)(2)"; his many speaking objections, with one of them flagrantly misstating the law; his motion for a mistrial twice in front of a jury; his unfair and false denigration of Dr. Davy as not being a "real surgeon"; his pattern of interrupting and speaking over the court despite the court's directions to stop; and his interruption of the trial by demanding that plaintiff's counsel move a chart she was showing to the jury to accommodate his refusal to move from his seat. The court further noted that, although not reflected in the record, defense counsel would use a "sneering, denigrating tone" while cross-examining Dr. Davy and plaintiff's other witnesses. The court also noted as not reflected in the record the "tone of voice" directed at plaintiff's counsel, witnesses, and the court, or the "volume of his voice"; the court noted that it had admonished counsel "not to scream" on several occasions. The court continued that not fully reflected in the record was the extent to which defense counsel would continue talking after being directed to stop.

The trial court clarified that where the transcript showed the court saying "stop" or "overruled" multiple times in succession, it was because defense counsel had continued to speak despite the court's direction. The court concluded that the improper comments about Dr. Davy and Dr. Guy could not be deemed harmless, as the nature and extent of plaintiff's injuries were in significant dispute. It also determined that this case did not present a situation where there was overwhelming evidence in favor of defendants and where an isolated comment could be deemed harmless. In light of the foregoing, the court ordered a new trial in the interest of justice. This appeal ensued.

We now affirm. We are mindful that a counsel's objection to improper conduct, but failure to timely move for a mistrial before a jury returns a verdict, renders the error unpreserved and "may limit appellate review" (Rivera v. Bronx–Lebanon Hosp. Ctr., 70 A.D.2d 794, 796, 417 N.Y.S.2d 79 [1st Dept.1979] ). However, pursuant to CPLR 4404(a), the court, upon the motion of any party or on its own initiative, may set aside a verdict "in the interest of justice." This "is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein" (Micallef v. Miehle Co., Div. of Miehle–Goss Dexter, Inc., 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571 [1976] ). In this regard, the trial court must decide, based on " ‘common sense, experience and sense of fairness,’ " whether "it is likely that the verdict has been affected" by the alleged misconduct (id.; 4 Weinstein–Korn–Miller, N.Y. Civ. Prac., par. 4404.11). The trial court's determination is "discretionary in nature" and should not therefore be reversed absent an abuse or improper exercise of discretion (see Micallef, at 381–382, 384 N.Y.S.2d 115, 348 N.E.2d 571 )

In this case, we find that the trial court properly considered plaintiff's posttrial motion and granted a new trial in the interest...