Vassura v. Taylor

• Decision Date: 24 February 1986
• Citation: 499 N.Y.S.2d 120,117 A.D.2d 798
• Parties: Rudolph VASSURA, et al., Appellants, v. Bruce TAYLOR, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 120

499 N.Y.S.2d 120

117 A.D.2d 798

Rudolph VASSURA, et al., Appellants, v.Bruce TAYLOR, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Feb. 24, 1986.

Finkelstein, Kaplan, Levine, Gittelsohn & Tetenbaum, Newburgh (Duncan W. Clark, of counsel), for appellants.

Appelbaum, Eisenberg, Bauman & Appelbaum, Liberty (Bertram W. Eisenberg, of counsel), for respondents.

Before LAZER, J.P., and GIBBONS, EIBER and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for personal injuries sustained in an automobile accident, the plaintiffs appeal, on the ground of inadequacy, from a judgment of the Supreme Court, Orange County(Donovan, J.), dated April 11, 1984, which, after a jury trial on the issue of damages only, was in favor of the plaintiffRudolph Vassura in the principal sum of $105,000, and in favor of the plaintiffClementa Vassura in the principal sum of $8,000.

Judgment reversed, on the law and as a matter of discretion, and a new trial granted on the issue of damages only, with costs to abide the event.

Although on this record we cannot agree with plaintiffs' contention that the jury's award of damages was inadequate as a matter of law (see, O'Connor v. Roth, 104 A.D.2d 933, 480 N.Y.S.2d 550, appeal dismissed64 N.Y.2d 934, 488 N.Y.S.2d 649, 477 N.E.2d 1103), we have determined that the plaintiffs are entitled to a new trial because of various improper and prejudicial remarks made by defense counsel during his cross-examination and summation.There was evidence to support the jury verdict, but "[t]he record quite palpably reveals that 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 seemingly continual and deliberate effort to divert the jurors' and the court's attention from the issues to be determined"(Mercurio v. Dunlop Ltd., supra, at p. 647, 430 N.Y.S.2d 140).Some of the more egregious comments are discussed herein.

Defense counsel improperly interjected the issue of no-fault insurance benefits into the case by cross-examining the plaintiffRudolph Vassura concerning his awareness of the medical benefits available to him under the no-fault law.Since the plaintiffs did not request damages for loss of earnings for the three years following the date of the injury, there was no reason to mention insurance except for the purpose of improperly influencing the jury.Although the trial court later instructed the jury that the no-fault law did not provide for benefits for pain and suffering, such instruction was given far too late to cure the prejudice created during the cross-examination (cf.Boyd v. Blessey, 96 A.D.2d 816, 465 N.Y.S.2d 563).

In his discussion in summation of the amount of damages which the plaintiffs should receive, defense counsel stated: "What's a lot of money?We don't know what's in the other fellow's pocket; but what's a life savings?"Defense counsel then persisted in suggesting that $50,000 would be an appropriate award because that amount would be close to a lifetime of savings for "the average working fellow".Although it was not improper for defense counsel to suggest the figure of $50,000 as an appropriate award (see, Tate v. Colabello, 58 N.Y.2d 84, 459 N.Y.S.2d 422, 445 N.E.2d 1101), it was extremely prejudicial to suggest that the measure of damages was a "life savings" or should be determined by whatever was "in the other fellow's pocket".References to the financial status of parties have been universally condemned by the courts of this State (see, e.g., Giuamara v. O'Donnell, 96 A.D.2d 1049, 466 N.Y.S.2d 692;Kenneth v. Gardner, 36 A.D.2d 575, 317 N.Y.S.2d 798;Rendo v. Schermerhorn, 24 A.D.2d 773, 263 N.Y.S.2d 743).The remarks of defense co...