You are here: / / DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL...
, ,

DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE.

The First Department, in a full-fledged opinion by Justice Renwick, with a concurring opinion, determined the trial judge properly granted plaintiff’s motion for a new trial in this personal injury case because of the unacceptable behavior of defense counsel. Plaintiff alleged she was struck by a bus while crossing the street, injuring her back and knee. The jury found the defendant 70% at fault but found that the injuries were not permanent and awarded nothing for future pain and suffering. The First Department concluded the verdict was probably a compromise and the defense attorney’s conduct deprived plaintiff of a fair trial:

​

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. Smith v Rudolph, 2017 NY Slip Op 02957, 1st Dept 4-18-17

 

ATTORNEYS (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/CIVIL PROCEDURE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)/NEGLIGENCE (DEFENSE COUNSEL’S UNACCEPTABLE CONDUCT IN THIS PERSONAL INJURY TRIAL WARRANTED THE TRIAL JUDGE’S ORDERING A NEW TRIAL (AFTER THE VERDICT) IN THE INTERESTS OF JUSTICE)

You might also like
DEFENDANT, WHO WAS CONVICTED IN VIRGINIA OF THE MURDER OF A 15-YEAR-OLD WITH NO SEXUAL COMPONENT, AND WHO WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN VIRGINIA, NEED NOT REGISTER AS A SEX OFFENDER IN NEW YORK.
VIOLATION OF PROBATION DETERMINATION CANNOT BE BASED SOLELY ON GRAND JURY MINUTES, WHICH CONSTITUTE HEARSAY, PROBATION REINSTATED (FIRST DEPT).
MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN SUMMARILY GRANTED WITHOUT A HEARING, THREE CRITERIA FOR VACATING A CONVICTION EXPLAINED, HERE DEFENDANT ALLEGED HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN CORRECTLY INFORMED BY COUNSEL OF THE DEPORTATION CONSEQUENCES OF HIS PLEA (FIRST DEPT).
BUILDING RESIDENTS CAN BRING CLASS ACTION AGAINST OWNERS-MANAGERS ALLEGING NEGLIGENCE IN PREPARATION FOR SUPERSTORM SANDY.
THE DEPOSITION OF THE NONPARTY MAJORITY SHAREHOLDER IN THE COOPERATIVE REGARDING LEAKS IN THE UNITS WAS PROPER AND SHOULD NOT HAVE BEEN STOPPED AND SUPPRESSED BY THE JUDGE; SANCTIONS AGAINST PLAINTIFF’S ATTORNEY FOR FRIVOLOUS AND UNPROFESSIONAL CONDUCT WERE WARRANTED (FIRST DEPT). ​
IN THIS ELEVATOR ACCIDENT CASE, ONE DEFENDANT FAILED TO DEMONSTRATE IT HAD NOT DISPLACED THE BUILDING OWNER’S DUTY TO KEEP THE PREMISES SAFE, AND ANOTHER DEFENDANT DEMONSTRATED IT DID NOT LAUNCH AN INSTRUMENT OF HARM; FAILING TO MAKE DANGEROUS CONDITION SAFER DOES NOT EQUATE WITH LAUNCHING AN INSTRUMENT OF HARM (FIRST DEPT).
THE CONDITIONAL ORDER OF DISMISSAL DIRECTING THE FILING OF A NOTE OF ISSUE DID NOT MEET THE REQUIREMENTS OF CPLR 3216; THE ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT). ​
THE VICTIM OF THE ASSAULT AND ATTEMPTED ROBBERY COULD NOT IDENTIFY THE DEFENDANT; THE VIDEO OF THE INCIDENT DIDN’T HELP; DEFENDANT WAS ARRESTED BECAUSE HE WAS DEPICTED IN SURVEILLANCE VIDEO NEAR THE SCENE WEARING DISTINCTIVE RIPPED AND PATCHED PANTS WHICH WERE NOT MENTIONED BY THE VICTIM OR DEPICTED IN THE INCIDENT VIDEO; THE ARREST WAS NOT SUPPORTED BY PROBABLE CAUSE; INDICTMENT DISMISSED AFTER GUILTY PLEA (FIRST DEPT).

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NEW YORK LAW APPLIED WHERE BOTH PLAINTIFF AND HIS EMPLOYER ARE CANADIAN, PLAINTIFF,... ALTHOUGH THE DEFENDANT ATTORNEY’S CONTINGENCY FEE IN THIS EQUITABLE DISTRIBUTION...