Tuesday, June 21, 2011

In Selzer v New York City Tr. Auth., NYS Supreme Court Sets The Verdict Aside

Selzer v New York City Tr. Auth.

2011 NY Slip Op 51015(U)
Decided on May 18, 2011
Supreme Court, New York County
Kenney, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2011
Supreme Court, New York County

Wilder Selzer, Plaintiff,
New York City Transit Authority, Defendant.

Plaintiff's Counsel:
Langsam Law
7 Dey Street, Suite 500
New York, NY 10007
212) 742-2700

Defendant's Counsel:
Smith & Laquercia, P.C.
291 Broadway
New York, NY 10007
(212) 227-3333

Joan M. Kenney, J.

Papers considered in review of this motion to set aside a verdict:

Notice of Motion, Affirmation, and Exhibits1-7
Opposition Papers, Affirmation with Exhibits8-13

Plaintiff's application seeks an Order pursuant to CPLR 4404(a), setting aside a jury verdict, and finding in favor of plaintiff as to liability and granting plaintiff a new trial on the issue of damages. Defendant opposes the motion.


In this personal injury action that was tried before a jury from December 3, 2010 through December 8, 2010, the jury rendered a verdict in favor of defendant, the New York City Transit Authority (TA). This Court presided over the jury trial. The case involved a claim by plaintiff, a passenger on an TA subway, that he was injured due to an unidentified conductor's closing of the [*2]subway doors while he was exiting the subway car. Plaintiff's right leg was allegedly trapped in the closing doors. Plaintiff testified that the lower part of his leg was trapped in the closed subway doors, causing him to fall and sustain multiple fractures to his leg. Plaintiff underwent an open reduction with internal fixation to treat the spiral fractures of his tibia and fibula.

Plaintiff argues seeks a new trial pursuant to CPLR 4404(a) on the grounds that the verdict was against the weight of the evidence and not in the interest of justice, due to the misconduct of counsel for the TA.

Defendant's counsel argues that his conduct did not rise to a level necessitating a new trial.


The discretion of a trial court to set aside the jury verdict pursuant to CPLR Section 4404(a) is a broad one intended to ensure that justice is done. CPLR §4404(a) states in pertinent part that:

"[a]fter a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

The power to set aside a jury verdict and order a new trial is an inherent one (McCarthy v Port of NY Auth., 21 AD2d 125, 127, [1st Dept 1964]), which is codified in New York in CPLR 4404(a). The power is a broad one intended to ensure that justice is done (see, Siegel, New York Prac. §406), but the proper standard for setting aside a jury verdict is elusive and has long defied precise definition (see, Mann v Hunt, 283 AD 140 [3d Dept 1953]). Nevertheless, a close examination of the precedents reveals several principles that tend to outline the parameters of this Court's function on such a motion.

Whether a jury verdict is against the weight of the evidence is essentially a discretionary and factual determination which is to be distinguished from the question of whether a jury verdict, as a matter of law, is supported by sufficient evidence (Cohen v Hallmark Cards, 45 NY2d 493, 498-499 [1978]; Yalkut v City of New York, 162 AD2d 185 [1st Dept 1990]). The criteria for setting aside a jury verdict as against the weight of the evidence are less stringent, for such a determination results only in a new trial and does not deprive the parties of their right to ultimately have all disputed issues of fact resolved by a jury (Cohen, supra, at 498).The fact that determination of a motion to set aside a verdict involves judicial discretion does not imply, however, that this Court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. "Fact-finding is the province of the jury, not the trial court, and a court must act cautiously or it could engage in an overzealous enforcement of its duty to oversee the proper administration of justice. A court cannot overstep its bounds and unnecessarily interfere with the fact-finding function of the jury to a degree that amounts to an usurpation of the jury's duty" (citations omitted). Nicastro v Park, 113 AD2d 129 [2d Dept 1985]).

Analysis of the cases reveals that particular deference has traditionally been accorded to jury [*3]verdicts in favor of defendants in tort cases because the disputed factual contentions are often sharper and simpler, and the jury need not find that a defendant has prevailed by a preponderance of the evidence, but rather may simply conclude that the plaintiff has failed to meet the burden of proof, establishing the defendant's culpability (citations omitted). Nicastro v Park, supra at 189.

As a general matter, "[i]ndeed, the court must cautiously balance the great deference to be accorded to the jury's conclusion ... against the court's own obligation to assure that the verdict is fair (citations omitted)." Bennett v Wolf, 40 AD3d 274 [1st Dept 2007]; McDermott v. Coffee Beanery, Ltd., 9 AD3d 195, 206 [1st Dept 2004]; Sepulveda v Aviles, 308 AD2d 1 [1st Dept 2003]; see, Mitchell v Yueh S. Wu, 38 AD3d 507 [2nd Dept 2007]).

Plaintiff argues inter alia, that a critical fact ignored by the jury, is that the expert's testimony regarding plaintiff's physical examination of plaintiff and the attendant medical records, went unrebutted. The TA did not call a medical expert to refute the testimony of plaintiff's expert. Plaintiff's expert, an orthopedic surgeon, testified that spiral fractures often occur when a foot and/or ankle are held in a fixed position, while the rest of the body twists. Plaintiff contends that the expert testimony corroborates plaintiff's version of how the accident occurred.

It is well settled that expert opinion evidence "must be based on facts in the record or personally known to the witness. [The expert] cannot reach his conclusion by assuming material facts not supported by evidence." (Cassano v. Hagstrom, 5 NY2d 643, 646 [1959]; Roques v Noble, 73 AD3d 204 [1st Dept 2010]). Here, the only statements indicating that the accident did not occur in the manner claimed by plaintiff, were the hypothetical statements made by defendant's counsel during his cross-examinations and summation. The TA conductor's testimony was based on speculation, because he testified that he did not know whether he was operating the doors in question at the time of the accident.

Given the plausible, uncontradicted evidence from plaintiff that the accident occurred in the manner he claimed, and not in the manner which defense counsel asserted, substantial justice would not be done if the verdict were permitted to stand. Moreover, plaintiff introduced competent testimony from an orthopedic surgeon, that plaintiff's injuries were the result of a trapping of the lower part of his foot or ankle.[FN1]

The weighing of the evidence is left entirely to this court's discretion, and this discretion may be exercised to set aside a verdict even where the evidence may be technically sufficient to sustain it (see, Siegel-NYPRAC §406; Cohen, supra, at 498-499). The court finds that the verdict is against the weight of the evidence. When there is something about the case that arouses a court's suspicions and makes it uncomfortable, although it cannot say clearly that the result can go in only one direction. It may be some misconduct on the part of counsel that the judge thinks may have influenced the verdict (see, Siegel-NYPRAC § 406, citing, Robinson v Klein, 21 AD2d 778 [1st Dept 1964]).

To obtain a new trial in the interest of justice, "[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected ... and must look to [her] own common sense, experience and sense of fairness rather than to precedents in [*4]arriving at a decision.' ... This power conferred upon a court to order a new trial is discretionary in nature." Micallef v Miehle Co., 39 NY2d 376, 381, (1976).

Plaintiff contends that the TA's attorney's misconduct tainted the course of the trial so that any chance for fair outcome was effectively destroyed, warranting new trial. Plaintiff argues that the TA's attorney interjected his own view of facts as to how he would personally enter and exit a subway train based upon his own experience and, that plaintiff was "rushing" home; and plaintiff never tried to exit the subway before the doors began to close. See, Valenzuela v City of New York, 59 AD3d 40, 869 (1st Dept 2008).Although a new trial may be granted in the rare circumstance that counsel's remarks rise to a watershed of prejudice so profound that it deprives the other party of a right to a fair trial, see e.g., Smith v City of New York, 217 AD2d 423, 424 (1st Dep't 1995), the watershed marker is very high, since the law allows for a wide latitude in the types of remarks allowed during trial and summation including comment, denunciation or appeal in advocating his/her cause. The TA attorney's conduct did not consist merely of a few, isolated, errant remarks. Rather, the remarks were repeated and calculated to influence the jurors by considerations not legitimately before them.

During his closing, the TA attorney also made the following statements:

TA'S Counsel:"After all, if you imagine a person standing in a doorway just standing there when the doors closed — - - and all of you [have] seen this happe[n] and I know this, during jury selection, you've all seen doors close on people and passengers, okay. You know what happens. It's the upper part of the person's body that's contacted."

Plaintiff's Counsel: Objection


TA's Counsel:". . . [B]ecause as I said in my opening, the plaintiff's body was outside of the train at the time of the occurrence. Why was it that way? I have no idea but it wasn't because his leg just happened to be at a particular point that it could be grabbed and held . . ."

"Think about it, how it happened. If he were going through, the upper part of his body would have been hit and would have been the contact point, his arm, shoulder, or something like that . . ."

Plaintiff's Counsel: "Objection"


TA's Counsel:"But not his leg."


TA's Counsel:"There is no other way I see it."

(Exhibit "A" annexed to moving papers).

A lawyer shall not assert personal knowledge of the facts in issue, except when testifying as a witness, and shall not assert a personal opinion as to the credibility of a witness (Code of Professional Responsibility, DR 7-106 [C](3)(4) [22 NYCRR § 1200.37(c)(3),(4)]; see also People v Paperno, 54 NY2d 294, 300-01 [1981]). This conduct amounts to a subtle form of testimony, as to which the opposing party cannot cross-examine (id., citing Paperno, at 301). In ruling on a motion for a new trial based on attorney misconduct, the trial court must determine, in its discretion, whether counsel's conduct created "undue prejudice or passion which played upon the sympathy of the jury" (Valenzuela, supra).

This Court cannot condone defendant's counsel's violation of these basic ethical and [*5]disciplinary rules. Further, this Court's observation was that defendant's counsel so tainted the course of the trial that he effectively destroyed any chance for a fair outcome by interjecting his own view of the facts to the jury."A new trial should be granted in the interests of justice only if there is evidence that substantial justice has not been done ... as would occur, for example, there has been misconduct on the part of the attorneys or jurors." (Gomez v Park Donuts, 249 AD2d 266 [2nd Dept 1998]; see also Schafrann v N. V Famka, Inc., 14 AD3d 363, 364, [1st Dept 2005]).

A verdict should be set aside only when the misconduct of the jury was likely to cause prejudice to one of the parties. Rather than employ a "per se" rule as to what constitutes prejudicial misconduct, courts make the determination on a "case-by-case basis, and the facts in each case must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered" (Taylor v Port Authority of New York and New Jersey, 202 AD2d 414 [2nd Dept 1994] [citations and internal quotations omitted]). As this standard suggests, the party claiming misconduct need not prove prejudice to an absolute certainty, but rather, that such prejudicial effect was "likely" (Edbauer v Board of Ed. of North Tonawanda City Sch. Dist., 286 AD2d 999 [4th Dept 2001]).

The TA's counsel created an atmosphere that deprived the plaintiff of a fair trial, not by an isolated remark during summation, but by continual and deliberate efforts to divert attention from the issues (see Vassura v. Taylor, 117 AD2d 798, 799 [2nd Dept 1986]; Mercurio v Dunlop, Ltd., 77 AD2d 647 [2nd Dept 1986]). For example, the TA's counsel repeatedly denigrated the ethics and veracity of the plaintiff and his counsel (see Clarke v New York City Tr. Auth., 174 AD2d 268, 276 [1st Dept 1992]; Weinberger v. City of New York, 97 AD2d 819, 820 [2nd Dept 1983]). The inflammatory and prejudicial comments made by defendant's counsel so contaminated the proceedings as to deny plaintiff his right to a fair trial (see Vassura v Taylor, supra).

According to a dissenting juror, defense counsel's speculative remarks regarding his personal theory regarding the cause of plaintiff's injuries, as well as, similar improper remarks made during summation and cross examination , e.g., plaintiff "jetting out of the train," were relied upon by the remaining jurors, rather than the uncontested witnesses' evidentiary testimony. The dissenting juror was so concerned that the remainder of the jurors were ignoring the evidence, that she asked for a read back of the charge relating to the inadmissability of counsel's remarks made during opening and closing statements.

As a rule of law, the discretionary power afforded to this Court to set aside a jury verdict and to order a new trial can only be exercised with considerable caution. There are strong indications that substantial justice has not been done in this case, therefore plaintiff is entitled to a new trial. Ohdan v City of New York, 268 AD2d 86 (1st Dept 2000); Berry v. Metropolitan Transportation Authority, 256 AD2d 271 (1st Dept 1998).

Accordingly, it is
ORDERED that plaintiff's motion is granted in part and denied in part; and it is further
ORDERED that plaintiff is granted a new trial on all issues; and it is further
ORDERED that plaintiff's counsel is to serve a copy of this Order upon the appropriate clerk's office so as to cause this case to be placed upon the Part 40 calendar.

Dated: May 18, 2011
E N T E R: [*6]
Hon. Joan M. Kenney

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