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JUDGES IN THE 2ND DEPARTMENT HAVE THE DISCRETION TO ORDER UNIFIED PERSONAL INJURY TRIALS WHERE THE ISSUES OF LIABILITY AND THE INJURIES ARE INTERTWINED AS THEY WERE IN THIS CONSTRUCTION ACCIDENT CASE; DEFENSE VERDICT SET ASIDE AND A NEW UNIFIED TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, setting aside the defense verdict on liability and ordering a new trial, determined that the trial judge had the discretion to order (and should have ordered) a unified trial (both liability and damages) in this Labor Law 240 (1), 241 (6), 200 and common law negligence action. Plaintiff (Castro) alleged the elevated work platform he was on collapsed and he fell 6 or 7 feet to the ground. There were no witnesses to the incident. Plaintiff alleged brain, head, shoulder and spine injuries. The defense alleged plaintiff was injured moving planks and did not in fact fall. Evidence of any brain injury was excluded from the trial. Because the evidence of brain injury was consistent with a fall, and inconsistent with moving planks, the exclusion of that evidence affected the fairness of the trial. The opinion makes it clear that judges in the Second Department have the discretion to order unified trials in personal injury cases:

Here, by any standard, a unified trial was warranted. Labor Law § 240(1) “imposes on owners or general contractors and their agents a nondelegable duty, and absolute liability for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks” … . [Defendants] disputed the plaintiffs’ claim that Castro fell from a scaffold and contended that the accident resulted not from an elevation-related risk, but from Castro’s action in lifting wooden planks. Evidence relating to Castro’s brain injuries, which would not have occurred from lifting wooden planks, was probative in determining how the incident occurred … . Thus, the nature of the injuries had an important bearing on the issue of liability.

The Supreme Court did not exercise its available discretion in denying the plaintiffs’ motion for a unified trial. The court’s determination was predicated upon its perception that a bifurcated trial was strictly required by the Second Department’s “rules.” However, neither the statewide rule nor the governing precedent absolutely requires that the trial of a personal injury action be bifurcated. Although bifurcation is encouraged in appropriate settings, bifurcation is not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases. …

Because the issues of liability and Castro’s injuries were so intertwined, the court’s insistence upon bifurcation and its ensuing limitations on the scope of the medical evidence that could be elicited by the plaintiffs deprived them of a fair trial. Castro v Malia Realty, LLC, 2019 NY Slip Op 06466, Second Dept 9-11-19

 

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PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL PART OF THE WORK, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED.
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IRRELEVANT PHOTOGRAPHS WERE ADMITTED SOLELY TO AROUSE THE EMOTIONS OF THE JURY; THE PROSECUTOR’S REMARKS IN SUMMATION WERE SIMILARLY IMPROPER; NEW TRIAL ORDERED (SECOND DEPT).
LATE NOTICE OF CLAIM PROPERLY ALLOWED DESPITE ABSENCE OF EXCUSE.
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APPELLANT WAS NOT APPRISED OF AND DID NOT WAIVE HER RIGHT TO COUNSEL; ORDERS OF PROTECTION REVERSED.
DEFENDANT RESTAURANT-BAR DEMONSTRATED ITS EMPLOYEE DID NOT KNOW THE DRIVER WAS UNDER 21, RESTAURANT-BAR ENTITLED TO SUMMARY JUDGMENT IN THIS DRAM SHOP ACT ACTION (SECOND DEPT).

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PRODUCTION OF THE ORIGINAL NOTE AND ENDORSEMENTS WAS “MATERIAL AND NECESSARY”... THE REFEREE’S REPORT RELIED ON HEARSAY AND SHOULD NOT HAVE BEEN CONFIRMED...