You are here: / / Apportionment of Damages Between the City and the Contractor Who Negligently...
, , ,

Apportionment of Damages Between the City and the Contractor Who Negligently Set Up Lane Closures for Its Highway Work Was Not Supported by the Weight of the Evidence—New Trial for Apportionment of Damages Ordered/Two-Justice Dissenting Opinion Argued that Plaintiffs’ Counsel’s Vouching for His Own Credibility and Attacking the Credibility of Defense Witnesses In Summation Warranted a New Trial

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined the weight of the evidence did not support a 65%/35% apportionment of damages to the city (65%) and the contractor (35%) who set up lane closures for highway repair work. Plaintiff was severely injured in an accident which the jury found was the result of the failure to adequately warn drivers of upcoming lane closures. Because the lane closures were the responsibility of the contractor, the majority determined the 65%/35% damages apportionment was not supported the weight of the evidence and sent the matter back for a new trial on the apportionment of liability. Much of the opinion, including the entirety of the dissenting opinion, focused on the propriety of remarks made by plaintiffs’ counsel during summation (vouching for his own credibility, attacking the credibility of defense witnesses, etc.):

It is well settled that trial counsel is afforded wide latitude in presenting arguments to a jury in summation … . During summation, an attorney “remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff’s proofs without depriving the plaintiff of a fair trial” … . However, an attorney may not “bolster his case . . . by repeated accusations that the witnesses for the other side are liars” …. .

Although the City failed to object to the bulk of the challenged comments during summation, the City moved for an immediate mistrial based on comments impugning defense counsel, the reference to “Wang and his gang,” and plaintiffs’ counsel’s allegedly vouching for his own credibility. We find that although some of the comments were highly inflammatory, they did not ” create a climate of hostility that so obscured the issues as to have made the trial unfair'” … . The jury had ample reason to question the testimony of Officer Pagano, lessening the danger that they were improperly influenced by plaintiff’s counsel’s remarks. Gregware v City of New York, 2015 NY Slip Op 06408, 1st Dept 8-4-15

 

You might also like
THE TRIAL JUDGE PROPERLY TERMINATED DEFENDANT’S SELF-REPRESENTATION DURING THE TRIAL BASED ON DEFENDANT’S BEHAVIOR; THE TRIAL JUDGE PROPERLY DECLINED TO EXCUSE A JUROR WHO, DURING DELIBERATIONS, SAID HE DID NOT WANT TO CONTINUE; DEFENDANT WAS NOT EXCLUDED FROM A MATIERAL STAGE OF THE PROCEEDING WHEN THE TRIAL JUDGE DISCUSSED HIS MENTAL CONDITION WITH COUNSEL (FIRST DEPT).
DEFENDANT DEMONSTRATED HE WAS NOT REPRESENTED BY THE ATTORNEY WHO PURPORTED TO WAIVE SERVICE OF PROCEES AND PERSONAL JURISDICTION DEFENSES ON BEHALF OF ALL DEFENDANTS; TWO-JUSTICE DISSENT (FIRST DEPT). ​
A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF’S STATE AND CITY HUMAN RIGHTS LAW CAUSES OF ACTION PROPERLY DISMISSED PURSUANT TO THE DOCTRINE OF COLLATERAL ESTOPPEL; THE IDENTICAL CLAIMS UNDER FEDERAL LAW WERE DISMISSED IN FEDERAL COURT ON SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FIRST DEPT).
PLAINTIFFS’ EXPERTS PRESENTED SUFFICIENT PROOF TO WARRANT A FRYE HEARING ON WHETHER A TUMOR MAY HAVE BEEN DETECTABLE BEFORE BIRTH.
No Proof of Service of Notice of Entry of Default Judgment; One Year Deadline Never Triggered​
ALTHOUGH THE EXCUSE WAS INADEQUATE, THE CITY HAD ACTUAL NOTICE OF THE HOLE PETITIONER STEPPED IN AND DELAY IN FILING THE NOTICE OF CLAIM DID NOT PREJUDICE THE CITY, PETITIONER’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED (FIRST DEPT).
ALLEGATION THE DEFENDANT-ATTORNEYS FAILED TO REFRESH THE EYEWITNESS’S RECOLLECTION LEADING TO ERRONEOUS TESTIMONY STATED A CAUSE OF ACTON FOR LEGAL MALPRACTICE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Plaintiffs, Who Provided Management Services to a Club Described in the Media... The Purchasers’ Purported Retraction of an Earlier Repudiation of the...