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DEFENSE COUNSEL’S REMARKS ALLEGING PLAINTIFF AND HER ATTORNEY FABRICATED EVIDENCE IN THIS SIDEWALK SLIP AND FALL CASE DENIED PLAINTIFF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s verdict in this sidewalk slip and fall case, determined defense counsel’s remarks in the opening and summation, alleging that the plaintiff and her lawyer, fabricated the account of where she fell, deprived plaintiff of a fair trial:

… [D]uring his opening statement, the defendant’s attorney made improper remarks accusing the plaintiff’s attorney of assisting the plaintiff with fabricating her account of where she fell, stating, among other things, that after the plaintiff told her attorney what street she fell on, “they went out to look for the worst spot on the street and they found it.” The defendant’s attorney further stated that the location of the fall claimed by the plaintiff was “lawyer-created fantasy” … . Similarly, on summation, the defendant’s attorney improperly stated that the plaintiff “changed her testimony based upon something her lawyer said to her,” and “although ‘perjury’ might be a little of a harsh word . . . she certainly testified willfully falsely” … . In addition, the defendant’s attorney improperly injected his own beliefs on summation, stating, “I truly don’t believe [the accident] happened here” and, after accusing the plaintiff of testifying falsely, stating, “I felt bad for [the defendant]. I felt bad for the whole system” … . Moreover, the defendant’s attorney inappropriately encouraged the jurors to speculate that the plaintiff declined to call an investigator as a witness at trial because the investigator would have testified unfavorably to the plaintiff … . Further, the defendant’s attorney improperly appealed to the passions of the jurors by stating that “[e]verything [the defendant has] worked for for his entire life is at risk on this trial” and that “[the plaintiff] wants to take my client’s property or money” … . Under the circumstances of this case, “‘the comments of the [defendant’s] counsel . . . were not isolated, were inflammatory, and were unduly prejudicial'” and “‘so tainted the proceedings as to have deprived [the plaintiff] . . . of a fair trial'” … . Windham v Campoverde, 2025 NY Slip Op 04939, Second Dept 9-10-25

Practice Point: Here counsel’s remarks in the opening and summation irreparably tainted the proceedings requiring a new trial.

 

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