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MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff’s motion to amend his bill of particulars to reflect a different date for the injury allegedly caused by defendant’s employees during a carpet delivery should not have been granted. The motion was made on the eve of trial more than four years after the action was commenced and after plaintiff had repeatedly asserted the date during discovery. It turned out that no delivery was made by defendant on the date alleged in the pleadings:

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“Generally, [i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'”… . Where, however, the application for leave to amend is made long after the action has been certified for trial, judicial discretion in allowing such amendments should be discreet, circumspect, prudent, and cautious… . “Moreover, when . . . leave is sought on the eve of trial, judicial discretion should be exercised sparingly” … .

Here, the plaintiff moved for leave to amend his bill of particulars more than four years after the action was commenced, and almost a year after the matter was stricken from the trial calendar. Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was for leave to amend the bill of particulars, as the defendant demonstrated that it would suffer significant prejudice as a result of the unexplained delay … . Tabak v Shaw Indus., Inc., 2017 NY Slip Op 03213, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE  (MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)/BILL OF PARTICULARS, MOTION TO AMEND  (NEGLIGENCE, MOTION, ON THE EVE OF TRIAL, TO AMEND THE BILL OF PARTICULARS TO CHANGE THE DATE OF THE INJURY SHOULD NOT HAVE BEEN GRANTED)

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CRITERIA FOR A PRELIMINARY INJUNCTION NOT MET, ALLOWING PAYMENT OF REDUCED RENT DURING THE PENDING LANDLORD-TENANT DISPUTE WAS IMPROPER.

The Second Department, reversing Supreme Court, determined the criteria for issuance of a preliminary injunction were not met in this dispute between landlord and tenant. The court further noted that a preliminary injunction is designed to preserve the status quo and ordering the landlord to accept a reduced rent while the action was pending was not proper:

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… [W]e find that the Supreme Court improvidently exercised its discretion in granting the plaintiff preliminary injunctive relief staying termination of the lease, and in further directing the plaintiff to pay rent in the reduced sum of $10,000 per month in lieu of the full amount of rent due under the lease. Although the plaintiff may ultimately be successful on the merits, it failed to establish that it would suffer irreparable harm or that the balance of the equities favor an injunction since its alleged damages are compensable in money damages and capable of calculation … . Moreover, the plaintiff’s vague and conclusory allegations regarding its inability to pay the full rent under the lease were insufficient to establish irreparable injury … . Furthermore, the court went beyond preserving the status quo, which is the essence of a preliminary injunction, and impermissibly rewrote the terms of the lease by directing that the plaintiff be permitted to pay only part of the rent due under the lease while it continued to occupy the premises … . Soundview Cinemas, Inc. v AC I Soundview, LLC, 2017 NY Slip Op 03209, 2nd Dept 4-26-17

CIVIL PROCEDURE (CRITERIA FOR A PRELIMINARY INJUNCTION NOT MET, ALLOWING PAYMENT OF REDUCED RENT DURING THE PENDING LANDLORD-TENANT DISPUTE WAS IMPROPER)/LANDLORD-TENANT (CRITERIA FOR A PRELIMINARY INJUNCTION NOT MET, ALLOWING PAYMENT OF REDUCED RENT DURING THE PENDING LANDLORD-TENANT DISPUTE WAS IMPROPER)/PRELIMINARY INJUNCTION (LANDLORD-TENANT, CRITERIA FOR A PRELIMINARY INJUNCTION NOT MET, ALLOWING PAYMENT OF REDUCED RENT DURING THE PENDING LANDLORD-TENANT DISPUTE WAS IMPROPER)

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MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED.

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The Second Department, reversing Supreme Court, determined defendant’s motion to renew in this rear-end collision case should not have been deemed a motion to reargue and denied. Plaintiff presented new evidence which was not available at the time the original motion was heard. The new evidence was sufficient to defeat the summary judgment motion:

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The new evidence included a transcript of the plaintiff’s deposition testimony, which had not been submitted to the court on the prior motion, as her deposition had not been completed until after the prior motion had been decided. Therefore, the motion was correctly denominated by the defendant as one for leave to renew his opposition to the plaintiff’s motion for summary judgment. Furthermore, this new evidence raised triable issues of fact as to the plaintiff’s comparative fault. Accordingly, the evidence was sufficient to change the court’s prior determination, and should have resulted in the court, upon renewal, denying the plaintiff’s motion for summary judgment on the issue of liability. Donovan v Rizzo, 2017 NY Slip Op 03154, 2nd Dept 4-26-17

CIVIL PROCEDURE (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/RENEW, MOTION TO MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)/REARGUE, MOTION TO  (MOTION TO RENEW SHOULD NOT HAVE BEEN DENIED AS A MOTION TO REARGUE, NEW EVIDENCE SUFFICIENT TO DEFEAT SUMMARY JUDGMENT WAS PRESENTED)

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HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION.

The Second Department noted that hearsay can be submitted in opposition to a summary judgment motion but, to raise a question fact, hearsay alone is not enough. Dindiyal v Dindiyal, 2017 NY Slip Op 03152, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/EVIDENCE (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/HEARSAY (SUMMARY JUDGMENT, HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)/SUMMARY JUDGMENT (HEARSAY,(HEARSAY CAN BE SUBMITTED IN OPPOSITION TO A MOTION FOR SUMMARY JUDGMENT, BUT HEARSAY ALONE WILL NOT DEFEAT THE MOTION)  

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CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED.

The Second Department determined the confirmation of a bankruptcy plan did not have a res judicata effect upon an action by plaintiff bank to require the recording of a mortgage that was pending when defendants’ bankruptcy proceedings were commenced:

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The plaintiff commenced this action in June 2013, inter alia, to direct the recording of a mortgage allegedly executed in September 2006 to encumber real property owned by the defendants … (the McKennas), and for a judgment declaring that that mortgage is superior in priority over other recorded mortgages on the property. On or about September 24, 2013, the McKennas filed a petition for Chapter 13 bankruptcy … , … automatically stay[ing] this action pursuant to 11 USC § 362(a). By order dated August 25, 2014, the Bankruptcy Court reclassified the plaintiff’s claim, for the purposes of that court, from “secured” to “unsecured,” and terminated the automatic stay for cause as to the plaintiff so that the plaintiff could continue the instant action through the entry of judgment. * * *

While an order confirming a Chapter 13 bankruptcy plan may constitute a final judgment on the merits … , the res judicata effect of a confirmed plan does not apply when a state court action concerning the validity of a lien remains unresolved at the time the bankruptcy proceedings were commenced … . Here, the instant action was pending when the McKennas filed their bankruptcy petition, and, therefore, the Supreme Court properly concluded that the subsequent confirmation of the amended Chapter 13 bankruptcy plan had no res judicata effect on the instant action. U.S. Bank N.A. v McKenna, 2017 NY Slip Op 03215, 2nd Dept 4-26-17

 

CIVIL PROCEDURE (RES JUDICATA, BANKRUPTCY PLAN, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)/BANKRUPTCY PLAN (RES JUDICATA, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)/RES JUDICATA (BANKRUPTCY PLAN, CONFIRMED BANKRUPTCY PLAN DID NOT HAVE A RES JUDICATA EFFECT ON AN ACTION ON A MORTGAGE WHICH WAS PENDING WHEN THE BANKRUPTCY PROCEEDINGS WERE COMMENCED)

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DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED.

The First Department, over a dissent, determined the $900,000 default judgment in this Labor Law action should not have been vacated. The court noted that it had the power to overrule Supreme Court, even in the absence of an abuse of discretion. It has been held that a defendant’s reliance on an insurance broker to handle a lawsuit, as argued here, is a valid excuse for a default. However defendant’s principal, Mr. Gjonaj, received, over the course of years, papers sent by plaintiff’s attorney which should have alerted him to fact that the lawsuit was progressing in defendant’s absence. The court further determined plaintiff’s installation of video cameras was a covered activity under the Labor Law and his falling from a ladder was therefore actionable:

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… [Mr.  Gjonaj’s.] assertion in this case that he believed his broker was forwarding the paperwork to the appropriate insurance carrier was unreasonable in light of his conceded receipt of the summons and complaint, two motions for a default judgment, a letter from the court and a court decision reflecting a $900,000 judgment against him. Surely Mr. Gjonaj knew that if his insurance company had retained a lawyer to appear for defendants, he and his corporations would not have continued to receive legal documents directly from plaintiff’s attorney and the court for over three years. The fact that [the broker] kept assuring Mr. Gjonaj “that everything in this matter was under control and that the claim was being handled by the proper insurance company,” does not help to establish reasonableness, objective or otherwise, on the part of Mr. Gjonaj, who should have known that everything was not under control after years of receiving so many legal documents from plaintiff’s counsel relating to the same lawsuit. Gecaj v Gjonaj Realty & Mgt. Corp., 2017 NY Slip Op 03109, 1st Dept 4-25-17

CIVIL PROCEDURE (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED)/LABOR LAW-CONSTRUCTION LAW (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED. FALLING FROM A LADDER WHILE INSTALLING VIDEO CAMERAS WAS A COVERED ACTIVITY)/LADDERS (LABOR LAW-CONSTRUCTION LAW DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED. FALLING FROM A LADDER WHILE INSTALLING VIDEO CAMERAS WAS A COVERED ACTIVITY)/VIDEO CAMERAS (LABOR LAW-CONSTRUCTION LAW DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED. FALLING FROM A LADDER WHILE INSTALLING VIDEO CAMERAS WAS A COVERED ACTIVITY)/INSURANCE LAW (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED)/DEFAULT JUDGMENTS (DEFENDANT’S RELIANCE ON ITS INSURANCE BROKER TO HANDLE A LABOR LAW PERSONAL INJURY CLAIM WAS NOT, UNDER THE FACTS, A SUFFICIENT EXCUSE, THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN VACATED)

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NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendants’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff raised a new theory in response to the summary judgment motion. The First Department held that the new theory could not be entertained by searching the record and therefore could not support the denial of summary judgment or an amended bill of particulars:

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Once the defendants met their burden for summary judgment, plaintiff was obligated to rebut defendant’s prima facie showing with medical evidence demonstrating that the defendants departed from accepted medical practice … . Here, plaintiff failed to address the opinions of defendants’ experts or defendants’ prima facie showing that the result from the complicated, extensive double jaw surgery was anything but a reasonable result. Thus, there was no basis to preclude a grant of summary judgment in favor of defendants … . Instead, plaintiff proffered a new theory, based on the report of an expert otolaryngologist, who opined that Dr. Behrman had failed to take into account plaintiff’s primary immune deficiency in planning the surgery, that he should have initially consulted with an immunologist who would have performed testing before surgery, and that he failed to refer plaintiff after surgery to an ENT doctor, who would have consulted with an immunologist. Plaintiff’s expert asserted that these failures led to the development of an infection, which caused plaintiff’s hearing loss, numbness, and teeth misalignment.

It is axiomatic that a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers … . Since plaintiff’s opposition papers were insufficient absent this new theory of recovery, defendants’ summary judgment motion should have been granted … . Biondi v Behrman, 2017 NY Slip Op 03039, 1st Dept 4-20-17

NEGLIGENCE (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/CIVIL PROCEDURE (SUMMARY JUDGMENT,  (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)/SUMMARY JUDGMENT (NEW THEORY COULD NOT BE CONSIDERED IN RESPONSE TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION, MOTION SHOULD HAVE BEEN GRANTED)

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APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE.

The Second Department determined petitioner’s application to add more handguns to his pistol permit was properly denied based upon his criminal history, despite the dismissal of most of the charges. The court noted that the Article 78 proceeding was not the proper venue for attacking the constitutionality of the licensing scheme. That should be done in a declaratory judgment action:

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… [G]ood cause existed, based on the petitioner’s criminal history, to deny the petitioner’s application to amend his license to include additional handguns was not arbitrary and capricious, and should not be disturbed… . The fact that the majority of the petitioner’s arrests resulted in the dismissal of the charges against him, or were ultimately resolved in his favor, did not preclude the respondent from considering the underlying circumstances surrounding those arrests in denying the application … .

Moreover, the petitioner’s constitutional challenge to the licensing scheme is unfounded … . We further note that the petitioner’s contention that certain aspects of the licensing eligibility requirements of Penal Law § 400.00(1) unconstitutionally infringe upon his right to bear arms under the Second Amendment (US Const, 2d Amend) is not properly before this Court in an original proceeding pursuant to CPLR article 78, as a declaratory judgment action is the proper vehicle for challenging the constitutionality of a statute … . Matter of Jackson v Anderson, 2017 NY Slip Op 02985, 2nd Dept 4-19-17

 

PISTOL PERMITS (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/CIVIL PROCEDURE  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)/DECLARATORY JUDGMENT  (APPLICATION TO ADD HANDGUNS TO PISTOL PERMIT PROPERLY DENIED BASED UPON PETITIONER’S CRIMINAL HISTORY, DECLARATORY JUDGMENT ACTION IS THE PROPER PROCEEDING IN WHICH TO CHALLENGE THE CONSTITUTIONALITY OF A STATUTE)

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AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED FOR THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACOTRS IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant auto repair shop (Auto Excellence) did not owe a duty to plaintiff who was injured driving a borrowed car. Plaintiff, who alleged the car was negligently repaired (causing injury), did not have a contractual relationship with the repair shop and did not allege any Espinal factors which could give rise to tort liability based on a contract. Because no Espinal factors were alleged there was no need for defendant to negate those factors in its motion papers:

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A contractual obligation, standing alone, generally will not give rise to tort liability in favor of a third party … , the Court of Appeals recognized that exceptions to this rule apply (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm, (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties, and (3) where the contracting party has entirely displaced another party’s duty, in Espinal, to maintain the premises safely.

Here, Auto Excellence made a prima facie showing of its entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to the repair contract and, thus, Auto Excellence owed her no duty of care … . Contrary to the plaintiff’s contention, since the pleadings did not allege facts which would establish the applicability of any of the Espinal exceptions, Auto Excellence was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Koslosky v Malmut, 2017 NY Slip Op 02977, 2nd Dept 4-19-17

NEGLIGENCE (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTY, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (ESPINAL FACTORS, (AUTO REPAIR SHOP OWED NO DUTY TO PLAINTIFF WHO HAD BORROWED THE CAR WHICH HAD BEEN REPAIRED BY THE OWNER, SINCE NO ESPINAL FACTORS WERE ALLEGED DEFENDANT REPAIR SHOP DID NOT NEED TO NEGATE THOSE FACTORS IN ITS MOTION FOR SUMMARY JUDGMENT)

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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:

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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)

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