Defendant appeals from an order of the Supreme Court, New York County (Robert D. Lippmann, J.), entered November 16, 2006, which denied its motion to set aside the verdict, and from a judgment, same court and Justice, entered January 16, 2007, which, on a jury verdict, awarded plaintiff judgment as to liability.
The opinion of the court was delivered by: Moskowitz, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Richard T. Andrias, J.P., Eugene Nardelli, James M. McGuire, Karla Moskowitz and Dianne E. Renwick, JJ.
We reverse and remand this case for a new trial because the misconduct of plaintiff's counsel so tainted the proceedings that it deprived defendant of a fair trial.
On May 16, 1999, plaintiff was injured when he fell during a softball game in the middle softball field in Fort Washington Park. The accident occurred while plaintiff was running from second base to home plate. After rounding third base, approximately five to six feet from the bag, he tripped when his left foot fell into a ditch. He felt his left ankle crack. Plaintiff claimed that the ditch, that he had not previously noticed, was approximately 14 inches wide and deep, and 20 feet long. Plaintiff claimed that defendant the City of New York was negligent in failing to maintain the field and that this negligence directly resulted in his accident and subsequent injury. Plaintiff denied telling anyone at the hospital where he received treatment about how the accident happened.
The trial in this case commenced on July 19, 2006. During his opening, plaintiff's attorney gave an extensive description of plaintiff's injuries. Immediately after opening statements, the trial judge bifurcated the issues of liability and damages. During the trial, plaintiff's counsel repeatedly acted as a witness. For example, when the City's attorney cross-examined plaintiff about a photo and asked where third base would have been, plaintiff's attorney objected and repeatedly stated that that portion of the photograph represented the pitcher's mound. When the City's attorney objected that plaintiff's attorney was testifying to his own personal knowledge, plaintiff's attorney interjected: "You were never there" and "I was there. That's the pitcher's mound." The court overruled the City's objection and stated that that portion of the photo was not third base. The City's attorney renewed his objection outside the presence of the jury.
The City also read into evidence portions of plaintiff's December 18, 2000 deposition in which plaintiff stated that shortly after he fell, an ambulance arrived, but a Parks Department pickup truck removed him from the area because the ambulance could not physically enter the park. Despite this testimony from plaintiff that he was taken off the field in a vehicle, when the City attorney stated in his closing argument that "[t]he so-called ditch or defect that we've been hearing about the whole trial, that was the pickup truck that was testified to that drove in to pick up the plaintiff from the first base area," plaintiff's attorney moved for a mistrial, to strike the City attorney's comments and accused the City's attorney of lying. Plaintiff's counsel stated that the City's comments were "an absolute fabrication, your Honor, that a truck could enter that property." Upon the City attorney's objection that plaintiff's attorney was testifying, plaintiff's attorney reiterated, in front of the jury, "[a]s an officer of the court, your Honor, I'm telling your Honor that that is an absolute fabrication." The court failed to give a curative instruction. Subsequently, outside the presence of the jury, the parties agreed that the court would tell the jury that the reference to the "truck" would be to a small, green Parks Department truck. The court so instructed the jury.
Defendant called Catherine O'Leary, a registered nurse at New York Presbyterian Hospital who helped treat plaintiff in the emergency room. She testified that she wrote on plaintiff's emergency triage sheet: "6:40 p.m. Patient injured left ankle while playing baseball, sliding into third base." O'Leary likely learned through an interpreter that the injury occurred while plaintiff was sliding into third base because O'Leary does not speak Spanish and plaintiff does not speak English. In an effort to refute this testimony that was obviously damaging to his case, plaintiff's attorney, during his summation, claimed there is no word in Spanish for "sliding into third base."
During his closing, plaintiff's attorney also made the following statements:
"It is something to win or lose based upon fact and truth. It is another thing to win or lose based upon misconceptions and half truths and sometimes things that you know cannot be.
"And when we began this, when I told you that I would - that I had the burden and I would present evidence, the one thing I didn't tell you is that I would create half truths and I would create things to try to fool you. That's not something I do. That's not something I ever will do. And that's not something that was done here.
"And I challenge you now, if you think that is what happened, if you think that is what I did or that's what [plaintiff] did, then I ask you, you can get up now, you can go in there and just say, 'I don't want to,' whatever it is, then leave. If you ...