Searcy v New York City Tr. Auth.

[*1] Searcy v New York City Tr. Auth. 2015 NY Slip Op 51155(U) Decided on August 7, 2015 Supreme Court, Kings County Schack, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 7, 2015
Supreme Court, Kings County

Johnny L. Searcy, Plaintiff,

against

New York City Transit Authority, Metropolitan Transit Authority and Lawrence Torinese, Defendants.



7141/12



Plaintiff:
Alan M. Shapey, Esq.
LIPSIG SHAPEY MANUS & MOVERMAN, PC
NY NY

Defendant:
Mark S. Yagerman, Esq.
SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, PC
NY NY
Arthur M. Schack, J.

The following papers numbered 1 to 6 read on this motion:Papers Numbered:

Notice of Motion/Affirmation Annexed1

Affirmation in Opposition2

Reply Affirmation_________________________________3

Sur-Reply Affirmation_____________________________4

Memorandum of Law______________________________5

Trial Transcript __________________________________6

In this personal injury action, plaintiff JOHNNY L. SEARCY (SEARCY) fell to the tracks, on Sunday, April 10, 2011, at about 7:30 P.M., from the northbound platform at the Bay 50th Street of the "D" line, in Brooklyn. Soon after, a northbound "D" train, operated by defendant LAWRENCE TORINESE (TORINESE) entered into the station.

Defendant TORINESE, an employee of defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSIT AUTHORITY (collectively "MTA"), noticed something on the tracks and applied the train's emergency braking mechanism. However, the wheels of the first truck of the train's first car went over plaintiff SEARCY, severing his left leg and crushing his right foot. Several hours later, plaintiff SEARCY's right foot was amputated at Lutheran Medical Center (LMC).

The Court conducted a unified trial, commencing on June 24, 2014 and concluding with a jury verdict on July 31, 2014. The jury found that defendants MTA and TORINESE were not negligent. The jury never reached the questions on the verdict sheet dealing with plaintiff SEARCY's negligence and damages.

Plaintiff SEARCY moves for an order to: set aside the jury verdict and order a new trial, pursuant to CPLR § 4404 (a), because the jury verdict finding defendants not negligent was against the weight of the credible evidence; and, order a new trial due to defense counsel reading from a hospital entry excluded by the Court from evidence, which prejudiced plaintiff's right to a fair trial. Defendants oppose the instant motion, claiming: the jury verdict is rationally based upon admissible evidence and not against the weight of the credible evidence; and, plaintiff's claim of prejudicial conduct by defense counsel is disingenuous, irrelevant and without merit.

The Court, for the reasons following, finds that the jury's liability verdict was not against the weight of the credible evidence and the claim that plaintiff's right to a fair trial was prejudiced by defendants' counsel reading from a precluded hospital entry is without merit. Therefore, plaintiff's instant motion is denied in its entirety.

Background

The subject accident occurred at about sunset, on April 10, 2011, at an elevated outdoor station. Plaintiff SEARCY was the only person on the station's northbound platform. He testified that he had been drinking earlier that day and he gave different statements in his deposition and at trial about the amounts of Old English Malt Liquor and E & J Brandy he had consumed. Further, plaintiff SEARCY testified that he did not know how he came to fall upon the tracks.

Plaintiff's counsel alleges that after plaintiff SEARCY fell to the tracks, a northbound "D" train, operated by defendant TORINESE, came around a curve before entering into the station, 270 feet from the south end of the northbound platform, while plaintiff SEARCY was lying on the tracks approximately 92 feet north of the south end of the northbound platform. Therefore, defendant TORINESE had 362 feet of clear, unobstructed, straight and level track to observe plaintiff SEARCY lying with his torso between the rails, with his legs extended over the right running rail. Several hours after the accident, defendant TORINESE made a statement to MTA's Rail Control Center that he didn't see plaintiff SEARCY until he was "right on top of him" and in his written statement defendant TORINESE stated that he only saw plaintiff SEARCY as he entered the station, when plaintiff SEARCY "suddenly" appeared on the tracks.

The Court charged the jury with a modified PJI 2:77.1, for a train operator, that a train operator has the duty to see what there is to be seen by the proper use of his senses and that if the train operator did not observe what was there to be seen, he could be found negligent in failing to look or not look carefully. Plaintiff's expert engineer, Nicholas Bellizzi, testified that, based upon defendant TORINESE's deposition testimony, defendant TORINESE saw plaintiff SEARCY from a minimum distance of 286 feet, yet defendant TORINESE failed to stop in time to avoid hitting plaintiff SEARCY. Mr. Bellizzi opined that defendant TORINESE should have stopped his train in 127 feet, using a one second reaction time, with the train traveling at 18 miles per hour when defendant TORINESE put the train into emergency. Thus, plaintiff's counsel alleges that the jury's verdict, that defendants were not negligent, is irrational and against the weight of the credible evidence.

Further, plaintiff's counsel alleges that defense counsel read to the jury a portion of the LMC Emergency Room records, written by a podiatrist, evaluating the injury to plaintiff SEARCY's right foot, where the podiatrist wrote that plaintiff SEARCY was intoxicated. The Court excluded the podiatrist note because it is conclusory, containing no information about what it is based upon, not germane to treatment of plaintiff's lower leg and foot injuries and prejudicial [transcript, p. 563]. Further, LMC did not perform a blood alcohol test to determine if plaintiff SEARCY was intoxicated or not. NYPD [*2]Sergeant Benny Au, in charge of the SEARCY accident scene, testified that he heard plaintiff SEARCY admit to two emergency medical technicians that he had been drinking that day.

Defense counsel, while conducting his direct examination of Dr. Robert Kurtz, a trauma expert, showed the excluded LMC's podiatrist note to Dr. Kurtz. Plaintiff's counsel objected [tr., pp. 1730-1731]. I asked to see the note and the following was said [tr., p. 1731, lines 1-3]:

THE COURT: Which aspect of this do you want me to look at or him to look at?

DEFENSE COUNSEL: Where it says intoxicated patient.

Plaintiff's counsel immediately asked to have the jury taken out of the room to make a motion. I had the jury escorted out of the courtroom Plaintiff's counsel asked me to immediately sanction defense counsel $10,000. I agreed that it was incorrect to have read the statement to the jury, but I was not going to immediately sanction defense counsel [tr., p. 1732]. I informed plaintiff's counsel he could make a motion for a sanction hearing. Plaintiff's counsel then accused defense counsel of "a conscious and deliberate act on his part to get that before the jury when the Judge has already ordered that it is not a part of the record [tr. p. 1733, lines 4-6]." Defense counsel claimed "[i]t was an innocent mistake [tr., p. 1733, line 22]." After an off the record discussion, the following took place, outside the presence of the jury [tr., p. 1734, line 16 - p. 1735, line 20]:

THE COURT: On the record. I am going to direct the jury to disregard and strike what [defense counsel] said. Now you want to show that to Dr. Kurtz go right ahead. I don't care. But let's not say what it says there.

DEFENSE COUNSEL: Yes.

THE COURT: And, I am going to tell them to disregard it. If - -

after the trial if [plaintiff's counsel] still wants to make a motion that he

believes that [defense counsel] gave sanctionable conduct he can make a

motion and if I go along with it I will hold a hearing.

DEFENSE COUNSEL: I apologize, I really do.

THE COURT: I understand that. Things happen.

DEFENSE COUNSEL: I really do.

THE COURT: Doctor, come back up here, please.

(Witness resumes witness stand.)

THE COURT: I will stand by what I said several weeks ago. I

don't know how a podiatrist came to that conclusion.

DEFENSE COUNSEL: I will ask him - -

PLAINTIFF'S COUNSEL: How does he know? He wasn't there.

THE COURT: Let's see what the questioning is.

COURT OFFICER: All rise, Jury entering.

(Whereupon the Jury enters the courtroom.)

THE COURT: All right everybody, please be seated. All right,

members of the jury, before we sent you out of the room [defense counsel]

made a statement quoting from what I think it was the third line of a

document that he has as part of the medical records. I am going to

ask you to disregard entirely what [defense counsel] said. So strike it

from your minds. Let's continue.

Direct examination of the witness then continued.

Plaintiff's counsel alleges that my curative instruction to the jury couldn't undo the prejudicial damage to his client from defendants' counsel reading from the inadmissible record that LMC's podiatrist concluded plaintiff was intoxicated. He alleges that the only fair and just remedy for such conduct by defense counsel is to undo the prejudice by ordering a new trial.

Defense counsel, in opposition, argues that the jury based its verdict upon rational evidence that defendant TORINESE was not negligent in the operation of his train, based upon the testimony of defendant TORINESE, various MTA supervisors, the train's conductor, and the defendants' expert engineer, Dr. Mark Marpet. Defendant TORINESE's view of a body on the tracks was hampered in that the accident occurred at dusk, the train was coming around a curve at 18 miles per hour and the train operator had to read the rails, look at signals and car markers and observe the platform, as well as the track in the station. Defense counsel claims defendant TORINESE's written accident report and his recorded statement to the MTA were consistent with his trial testimony and the jury verdict in favor of defendants was based upon evidence that the train operator when confronted with an emergency not of his own making placed the train in emergency as soon as he reasonably could when he saw something on the tracks. Further, Dr. Marpet opined that the accident was unavoidable and defendant TORINESE reacted in a reasonable fashion when confronted with an emergency not of his own making. He also testified that the reaction time of the train operator would be two and one quarter seconds to three and one third seconds, not the one second reaction time testified to by plaintiff's expert, Mr. Bellizzi.

Moreover, defense counsel claims that plaintiff's argument, that the jury was prejudiced by defense counsel mentioning the portion of the LMC record in which a podiatrist claimed plaintiff was intoxicated, is disingenuous, irrelevant and without merit. He argues that: his statement was inadvertent; the Court promptly instructed the jury to disregard the comment; and, plaintiff's counsel, in his opening to the jury, conceded plaintiff SEARCY's liability and stating he was seeking comparative negligence. Plaintiff SEARCY testified in his deposition and at trial to drinking different amounts of Old English malt liquor and E & J Brandy for a period of several hours prior to the accident. Moreover, the jury in its deliberations never even reached the issue of plaintiff's [*3]comparative fault because it found defendants not negligent. Thus, the jury never deliberated about the issues of whether plaintiff SEARCY was intoxicated and negligent.

Discussion

The power of the Court to set aside a jury verdict and order a new trial is discretionary. It is codified in CPLR Rule 4404 (a), which states:

Motion after trial where jury required. After a trial of a cause

of action or issue triable of right by a jury, upon the motion of any party

or on its own initiative, the court may set aside a verdict or any judgment

entered thereon and direct that judgment be entered in favor of a party

entitled to judgment as a matter of law or it may order a new trial of a

cause of action or separable issue where the verdict is contrary to the

weight of the evidence, in the interest of justice or where the jury

cannot agree after being kept together for as long as is deemed

reasonable by the court.

This broad power is invoked only when the jury verdict is against the weight of the evidence. The Court, in Cohen v Hallmark Cards, Inc. (45 NY2d 493, 499 [1978]), instructed that, "the question whether a verdict is against the weight of the evidence involves what is in large part a discretionary balancing of many factors (see Mann v Hunt, 283 App Div 140 [3d Dept 1953])." The Appellate Division, Second Department, in applying the Cohen v Hallmark Cards, Inc. standard in Nicastro v Park (113 AD2d 129, 133-134 [2d Dept 1985]), held: The fact that determination of a motion to set aside a verdict

involves judicial discretion does not imply, however, that the trial

court can freely interfere with any verdict that is unsatisfactory or with

which it disagrees. A preeminent principle of jurisprudence in this

area is that the discretionary power to set aside a jury verdict and

order a new trial must be exercised with considerable caution, for in

the absence of indications that substantial justice has not been done,

a successful litigant is entitled to the benefits of a favorable jury verdict.

Fact-finding is the province of the jury, not the trial court, and a court

must act warily lest overzealous enforcement of its duty to oversee the

proper administration of justice leads it to overstep its bounds and

"unnecessarily interfere with the fact-finding function of the jury to a

degree that amounts to an usurpation of the jury's duty" [citations

omitted]. This is especially true if a verdict is contested solely on

weight of the evidence grounds and interest of justice factors have

not intervened to flavor the judicial response to the motion. Absent

such complications, the challenge is directed squarely at the accuracy

of the jury's fact-finding and must be viewed in that light. [Emphasis

added]

(See Matter of State of New York v Ian I.,127 AD3d 766, 767 [2d Dept 2015]; Matter of State of New York v Edison G., 107 AD3d 723, 724 [2d Dept 2013]; Felicia v Boro Crescent Corp., 105 AD3d 697, 698 [2d Dept 2013]; Caliendo v Ellington, 104 AD3d 635, 636-637 [2d Dept 2013]; Loprieto v Scotti, 101 AD3d 829, 829-830 [2d Dept 2012]; Daniels v Sims, 99 AD3d 658, 659 [2d Dept 2012]; Bergamo v Verizon N.Y, Inc., 95 AD3d 916, 917 [2d Dept 2012]).

Further, the Court is mindful of the admonition in Shaw v Board of Educ. of City of New York (5 AD3d 468 [2d Dept 2004]), that a "jury verdict is entitled to great deference and should be set aside as against the weight of the evidence only when it could not have been reached on any fair interpretation of the evidence." (See Lopez v Hage, 127 AD3d 824, 825 [2d Dept 2015]; Maharaj v LaRoche, 121 AD3d 953 [2d Dept 2014]; Schwartz v Nagori, 115 AD3d 733, 734 [2d Dept 2014]; Hatzis v Buchbinder, 112 AD3d 890 [2d Dept 2013]; Wallace v City of New York, 108 AD3d 760, 761 [2d Dept 2013]; Doran v McNulty, 107 AD3d 843, 844 [2d Dept 2013]; Soto v Elmback Owners, LLC, 106 AD3d 986 [2d Dept 2013]; Delva v New York City Transit Authority, 85 AD3d 712 [2d Dept 2011]). Moreover, "[i]t is well settled that a jury verdict should not be set aside where to do so interferes with the fact finding function of the jury (see Durante v Frishling, 81 AD2d 631 [2d Dept 1981])." (Bivona v Port Authority of New York and New Jersey, 118 AD2d 747, 748 [2d Dept 1986]).

In Hernandez v Carter and Parr Mobile, Inc. (224 AD2d 586, 587 [2d Dept 1996]), the Court instructed that "[i]t is beyond cavil that the determination of the jury which observed the witnesses and the evidence is entitled to great deference. We find that the jury's determination in favor of the defendant was based upon a fair interpretation of the evidence and we reject the plaintiffs' contention that the verdict is against the weight of the evidence." (See Wallace v City of New York, supra; Das v Costco Wholesale Corp., 98 AD3d 712, 712 [2d Dept 2012]; Gaudiello v City of New York, 80 AD3d 726 [2d Dept 2011]; Delva v New York City Transit Authority, supra).

During the trial, the jury observed the witnesses, measured their credibility and weighed the evidence. The jury had a rational basis for its verdict. It was neither against the weight of the evidence nor inconsistent. Therefore, the Court cannot find any reason to set aside the jury's verdict. Among the witnesses the jury heard were: Subrata Kanjilal, an MTA Train Service Supervisor; Dr. Robert Sugarman, plaintiff's human factors expert; Dr. Joseph Carfi, plaintiff's life care planning expert; defendant TORINESE; Nicolas Bellizzi, plaintiff's expert engineer; Dr. Alan Leiken, plaintiff's economist; plaintiff SEARCY; NYPD Sergeant Benny Au; Janelle Williams, conductor of the train; Dr. Mark Marpet, defendants' expert engineer; Dr. Malcolm Reid, defendants' physical medicine expert; Dr. Robert Kurtz, defendants' trauma medicine expert; and, Michael De Luca, an MTA photographer.

The Court of Appeals, in Coleman v New York City Transit Authority (37 NY2d 137, 140 [1975]), instructed, "[w]here a motorman of a subway train sees a person lying on the tracks abutting a subway station platform, from such a distance and under such other circumstances as to permit him, in the exercise of reasonable care, to stop before striking the person, the motorman's failure to avoid the accident may be found to be negligence [emphasis added]." Thus it is within the fact-finding province of the jury to determine if defendant TORINESE was negligent. Only if the Court finds that the jury's verdict could not have been reached on any fair interpretation of the evidence can the Court set the verdict aside.

Further, the jury heard conflicting testimony, on the average reaction time of train operators when faced with an emergency, from plaintiff's engineering expert, Nicholas Bellizzi and from defendants' engineering expert, Dr. Mark Marpet. In Dibble v New York City Transit Authority (76 AD3d 272[1d Dept 2010]), a case with a fact pattern very similar to the one in the instant action, the same experts, Mr. Bellizzi and Dr. Marpet, testified about train operator reaction times and stopping distances. The Dibble Court held, at 280:

the record does not reflect that the plaintiff's expert [Mr. Bellizzi] provided

any foundation or evidentiary support for his observation that the average

reaction time of a train operator is one second. Much less was it

established as the average reaction time for non-negligent train operators . . .

[I]t is self-evident that if the average reaction time is deemed to be one

second for train operators, then a number of all train operators will have

a reaction time of less than one second, and correspondingly a number

of all train operators a reaction time of more than one second. Moreover,

as Dr. Marpet testified, those in the 85th percentile will have a reaction

time of two and a quarter seconds . .

Further, as Marpet testified, and Bellizzi conceded, reaction time also may be affected on any particular occasion by factors such as age and vision and other variables such as lighting or weather or time of day.

Thus, the jury weighed the differing expert opinions regarding how long it took defendant TORINESE to put the train into emergency. Plaintiff SEARCY's accident occurred at dusk, with plaintiff SEARCY in an unexpected area, on the tracks, and not moving. The jury had to take this into account in analyzing the reaction time of defendant TORINESE to the emergency situation that confronted him. Thus, the jury's verdict in favor of defendants, that they were not negligent, was rationally based and supported by a fair interpretation of the evidence.

Plaintiff's argument, that defense counsel mentioned a portion of the LMC record that was excluded prejudiced plaintiff and entitles him to a new trial, has no merit. When defense counsel, in his direct examination of his trauma expert, Dr. Kurtz, referred to the LMC's podiatrist note, I asked to see it [tr., pp. 1730-1731]. Instead of just showing me the note, defense counsel inadvertently mentioned intoxication. Outside the presence of the jury, defense counsel said "[i]t was an innocent mistake [tr., p. 1733, line 22]." I gave the jury a curative instruction and promptly told the jury to disregard defense counsel's comment and strike it from your minds.

In Torrado v Lutheran Med. Ctr. (198 AD2d 346 [2d Dept 1993]), defense counsel argued that defendant was entitled to a new trial because of alleged inflammatory comments made by plaintiff's counsel in his summation. The Court held, at 347, "[w]hile we agree with the defendant that these remarks were improper, we find that reversal of the liability verdict is not warranted, as this misconduct did not divert the jurors' attention from the issues to be determined with respect to liability or deprive the defendant of a fair trial." (See Matamoros v Tovbin, 82 AD3d 941, 942 [2d Dept 2011]; Pello v Syed, 41 AD3d 568 [2d Dept 2007]; Vingo v Rosner, 29 AD3d 896, 897 [2d Dept 2006]; Ritz v Lee, 273 AD2d 291 [2d Dept 2000]). In Valloni v Crisona (170 AD2d 596 [2d Dept 1991], the Court instructed, at 597, that "the single disparaging comment . . . made by the plaintiff's counsel . . . did not warrant the granting of a mistrial."

In Moore v Town of Huntington (39 AD2d 764 [2d Dept 1972]), the trial court set aside the verdict and granted a new trial because of an "extremely prejudicial" comment by defense counsel in his summation. The Court disagreed, holding "we find the subject remark only mildly improper, not seriously prejudicial. Moreover, it was only a single isolated impropriety in an otherwise clean trial and it does not appear to have influenced the jury's verdict. If there had been any slight prejudice resulting from the remark, that prejudice was cured by the trial court's prompt instructions to the jury to disregard it."

In Pascavage v City of Cohoes ( 95 AD2d 969 [3d Dept 1983], plaintiff appealed a defense verdict, alleging, among other things, that defense counsel made a prejudicial remark in his summation. The Court held, at 971, "this single isolated impropriety does not appear to have influenced the jury's verdict and any prejudice resulting from the remark was effectively dissipated by the trial court's curative instructions (Moore v Town of Huntington (39 AD2d 764 [2d Dept 1972])." The Court, in Hiliuk v Daponte (100 AD2d 612 [2d Dept 1984]) instructed, "any prejudice which may have resulted from counsel's conduct was cured by the trial court's . . . immediate and specific curative instructions to the jury."

Further, plaintiff's counsel conceded that his client bore some responsibility for his client's action as a cause of the April 10, 2011-accident. The issue of whether plaintiff SEARCY was intoxicated is irrelevant. The jury never reached the issue of plaintiff SEARCY's comparative fault because it found defendants MTA and TORINESE not negligent. Thus, the jury never reached the issue of whether plaintiff SEARCY was intoxicated.

Therefore, plaintiff SEARCY's instant motion is denied in its entirety.

Conclusion

Accordingly, it is

ORDERED, that the motion of plaintiff JOHNNY L. SEARCY, to: set aside the jury verdict and order a new trial, pursuant to CPLR § 4404 (a), because the jury verdict finding defendants not negligent was against the weight of the credible evidence; and, order a new trial due to defense counsel reading from a hospital entry excluded by the

Court from evidence, which prejudiced plaintiff's right to a fair trial; is denied in its entirety.

This constitutes the Decision and Order of the Court.

ENTER

___________________________
HON. ARTHUR M. SCHACK

J. S. C.