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Solomon Zwiebel, Faigy Zwiebel, Yaakov T. Bron and Chanah Bron v. Shmiel D. Guttman and Williamsburg Leasing

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


July 25, 2012

SOLOMON ZWIEBEL, FAIGY ZWIEBEL, YAAKOV T. BRON AND CHANAH BRON, RESPONDENTS,
v.
SHMIEL D. GUTTMAN AND WILLIAMSBURG LEASING, APPELLANTS, -AND- CHASE MANHATTAN AUTO FINANCE CORP., DEFENDANT.

Appeals from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered October 7, 2008.

Zwiebel v Guttman

Decided on July 25, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: WESTON, J.P., RIOS and ALIOTTA, JJ

The order denied separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing to set aside a jury verdict on the issue of damages.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that, on the court's own motion, the portions of the notices of appeal that are from so much of the order entered October 7, 2008 as denied the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing seeking to set aside the portion of the verdict that is in favor of plaintiff Solomon Zwiebel are deemed to be premature notices of appeal from a judgment of the same court entered July 13, 2010, awarding said plaintiff the principal sum of $430,000 (see CPLR 5520 [c]); and it is further,

ORDERED that, on the court's own motion, the portions of the notices of appeal that are from so much of the order entered October 7, 2008 as denied the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing seeking to set aside the portion of the verdict that is in favor of plaintiff Faigy Zwiebel are deemed to be premature notices of appeal from a judgment of the same court entered July 13, 2010, awarding said plaintiff the principal sum of $15,000 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgments entered July 13, 2010 are reversed, without costs, so much of the order entered October 7, 2008 as denied the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing seeking to set aside the portions of the verdict that are in favor of plaintiffs Solomon Zwiebel and Faigy Zwiebel is vacated, said branches of the separate motions are granted, and the matter is remitted to the Civil Court for a new trial on the issue of damages to be awarded to plaintiffs Solomon Zwiebel and Faigy Zwiebel as against defendants Shmiel D. Guttman and Williamsburg Leasing; and it is further,

ORDERED that the October 7, 2008 order, insofar as reviewed on direct appeal, is reversed, without costs, the branches of the separate motions by defendants Shmiel D. Guttman and Williamsburg Leasing to set aside the portions of the verdict in favor of plaintiffs Yaakov T. Bron and Chanah Bron are granted, and the matter is remitted to the Civil Court for a new trial on the issue of damages to be awarded to plaintiffs Yaakov T. Bron and Chanah Bron as against defendants Shmiel D. Guttman and Williamsburg Leasing.

This personal injury action arises out of a single-vehicle accident which occurred in upstate New York on September 1, 2002. Several months before the accident, plaintiff Solomon Zwiebel had entered into a lease agreement for the motor vehicle involved in the accident with defendant Williamsburg Leasing, which assigned all of its rights under the lease agreement to defendant Chase Manhattan Auto Finance Corp. (Chase), which had provided the financing. At the time of the accident, the vehicle was being driven by defendant Shmiel D. Guttman. Plaintiff Solomon Zwiebel and plaintiff Yaakov T. Bron were passengers in the vehicle, and both were injured. Except for immediate emergency care, both declined to be treated at a local hospital near the area where the accident had occurred and, instead, elected to travel to New York City hospitals for medical treatment. As a result of the accident, Mr. Zwiebel sustained a comminuted fracture of the midshaft of the distal humerus of his left arm, requiring open reduction and internal fixation surgery. Mr. Bron sustained a midshaft tibiofibular fracture requiring internal fixation surgery, and a subsequent surgery to alter the positioning of a rod that had been inserted during the first surgery. Messrs. Zwiebel and Bron, along with their spouses, who asserted derivative claims, commenced this action against defendants Guttman, Williamsburg Leasing, and Chase. Plaintiffs' motion for summary judgment on the issue of liability was granted by the Supreme Court, Kings County, and, after the action was transferred to the Civil Court, Kings County, pursuant to CPLR 325 (d), a jury trial on the issue of damages was conducted in February 2008. The jury awarded $200,000 for past pain and suffering and $230,000 for future pain and suffering to plaintiff Solomon Zwiebel, and $15,000 to plaintiff Faigy Zwiebel on her derivative claim. The jury awarded $300,000 for past pain and suffering and $430,000 for future pain and suffering to plaintiff Yaakov T. Bron, and $10,000 to plaintiff Chanah Bron on her derivative claim. Defendants Guttman and Williamsburg Leasing (defendants) separately moved to set aside the verdict. Their motions were denied by order dated October 7, 2008, from which they appeal. (Plaintiffs have settled the case with defendant Chase.)

As separate judgments in favor of plaintiffs Solomon Zwiebel and Faigy Zwiebel were entered on July 13, 2010, the portions of the notices of appeal that are from so much of the October 7, 2008 order as denied the branches of the separate motions by defendants seeking to set aside the portions of the jury verdict awarding damages to plaintiffs Solomon Zwiebel and Faigy Zwiebel are deemed to be premature notices of appeal from these judgments (see CPLR 5520 [c]).

At issue on this appeal is whether the Civil Court improvidently exercised its discretion in requiring the three defendants to designate a single attorney to represent them during the damages phase of the trial. Under the circumstances of this case, we conclude that the court's decision constituted an improvident exercise of its discretion and deprived defendants of a fair trial.*fn1

CPLR 4011 vests the trial court with the power to "regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue in a setting of proper decorum." Thus, to ensure the orderly administration of the proceedings, a court may require multiple defendants to appoint a single attorney to act as their representative. "[W]hile the court's power in this regard is, necessarily, broad, it clearly is not without limitation" (Rosenzweig v Blinshteyn, 149 AD2d 280, 283 [1989]). In exercising its authority under CPLR 4011, a court must be mindful of a party's "general right" to be represented by counsel of its own choosing and of the ability of counsel to represent each party's interests fairly (id. at 283, 285). In cases in which the defendants have conflicting interests, or in which a single attorney may represent one defendant's interests more vigorously than another, a court's authority to administer the proceedings efficiently should yield to a party's right to a fair trial (see id. at 285).

Here, the court-ordered designation of the attorney for one defendant, i.e., Chase, to represent the three defendants - all of whom had divergent interests - deprived the remaining defendants, Guttman and Williamsburg Leasing, of a fair trial. Unlike its co-defendants, Chase, as the assignee of plaintiff Solomon Zwiebel's motor vehicle lease agreement, had a counterclaim of indemnity against plaintiff Solomon Zwiebel pursuant to Solomon Zwiebel's insurance policy, as well as a claim for common-law indemnity against co-defendant Guttman. Thus, while Chase had an incentive to limit the amount of damages, that incentive was far less than that of its co-defendants. Williamsburg Leasing had been denied leave to amend its answer to assert a counterclaim against Solomon Zwiebel for contractual indemnification since it had assigned all of its rights under the lease agreement to Chase (see Zwiebel v Guttman, 26 AD3d 429 [2006]), and Guttman, as the driver, would ultimately be responsible for any damages on a claim for indemnification. It should be noted that the action against Chase, whose counsel served as the attorney for all three defendants at trial, was ultimately settled and discontinued by plaintiffs after the jury rendered its verdict, leaving defendants Guttman and Williamsburg Leasing liable for the damages. On this record, reversal is required, as there was no real incentive for Chase's attorney to vigorously represent the co-defendants' interests. Indeed, in light of its counterclaim for indemnification, Chase was able to settle with plaintiffs Solomon Zwiebel and Faigy Zwiebel for one dollar following the verdict.

In view of the foregoing, we need not address defendants' remaining contentions.

Weston, J.P., Rios and Aliotta, JJ., concur.

Decision Date: July 25, 2012


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