Clarke v. Transit Auth

55 Citing cases

  1. Bertram v. N.Y. Presbyterian Hosp.

    2013 N.Y. Slip Op. 30988 (N.Y. Sup. Ct. 2013)

    . E.g., Clarke v. New York Citv Tr. Auth., 174 A.D.2d 268, 277-78 (1st Dep't 1992); Berkowitz v. Marriott Corp., 163 A.D.2d at 53; O'Neil v. Klass, 36 A.D.3d at 678; Steidel v. County of Nassau, 182 A.D.2d at 814. See Nuccio v. Chou, 183 A.D.2d at 514-15; Rodriguez v. Citv of New York, 67 A.D.3d at 885; Pagano v. Murray, 309 A.D.2d at 911; Dwyer v. Nicholson, 193 A.D.2d at 77.

  2. Gregware v. City of N.Y.

    132 A.D.3d 51 (N.Y. App. Div. 2015)   Cited 19 times

    It is well settled that trial counsel is afforded wide latitude in presenting arguments to a jury in summation (see Califano v. City of New York, 212 A.D.2d 146, 154, 627 N.Y.S.2d 1008 [1st Dept.1995] ). During summation, an attorney “remains ‘within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiff's proofs without depriving the plaintiff of a fair trial” (Selzer v. New York City Tr. Auth., 100 A.D.3d 157, 163, 952 N.Y.S.2d 26 [1st Dept.2012] [citation omitted] ). However, an attorney may not “bolster his case ... by repeated accusations that the witnesses for the other side are liars” (Clarke v. New York City Tr. Auth., 174 A.D.2d 268, 277, 580 N.Y.S.2d 221 [1st Dept.1992] ; see e.g. Berkowitz v. Marriott Corp., 163 A.D.2d 52, 53–54, 558 N.Y.S.2d 511 [1st Dept.1990] [counsel's conduct, including “engag(ing) in an unfair and highly prejudicial attack upon the credibility and competence of defendants' expert witnesses and attorneys,” referring to the experts repeatedly as “hired guns” brought in to “fluff up the case,” warranted a new trial] ). Although the City failed to object to the bulk of the challenged comments during summation, the City moved for an immediate mistrial based on comments impugning defense counsel, the reference to “Wang and his gang,” and plaintiffs' counsel's allegedly vouching for his own credibility.

  3. Gilson v. Metropolitan Opera

    15 A.D.3d 55 (N.Y. App. Div. 2005)   Cited 20 times

    A rational reading of this provision discloses that the reference to safety is not the motivation for refusing to seat patrons during a performance; rather, both safety concerns and the no-seating policy are, jointly, the motives for the direction that "every effort should be made to see that ticket holders do not cluster inside the entrance to the Auditorium prior to or during the performance." Moreover, even if the no-seating policy had been adopted in order to protect the audience members' safety rather than as a rule of etiquette, the policy would still amount to an internal rule imposing "a standard that transcends reasonable care," the breach of which cannot be considered evidence of negligence ( see Sherman v. Robinson, 80 NY2d 483, 489 n 3 [1992]), at least where there is no showing of detrimental reliance by the plaintiff on the rule ( see Prince v. New York City Hous. Auth., 302 AD2d 285, 286, citing Clarke v. New York City Tr. Auth., 174 AD2d 268, 275-276). Were we to now impose on the Metropolitan Opera a duty to escort into his or her seat any audience member not seated once the house lights were down, based upon the relied-upon guideline, we would, in effect, be punishing it for attempting to ensure an exceptional level of courtesy to the audience and the performers.

  4. Roberts v. N.Y.C. Health & Hosps. Corp.

    2019 N.Y. Slip Op. 33156 (N.Y. Sup. Ct. 2019)

    But remarks that "so violate the rights of the other party to the litigation and may have substantially influenced or been determinative of the outcome, will not be condoned" (see Steidel v County of Nassau, 182 AD2d 809 [2d Dept 1992]). It is error for trial counsel to bolster his case by accusations that the witnesses for the other side are liars (see Clarke v New York City Transit Authority, 174 AD 2d 268 [1st Dept 1992]). It is also error to accuse medical experts of being willing to testify falsely for a fee (see Clarke v New York City Transit Authority, 174 AD 2d 268 [1st Dept 1992]; Berkowitz v Marriott Corp., 163 AD 2d 52 [1st Dept 1990]).

  5. Lichy v. Mount Sinai Med. Ctr., the Mount Sinai Hosp., Laparoscopic Surgical Ctr. of N.Y. LLP

    2017 N.Y. Slip Op. 31552 (N.Y. Sup. Ct. 2017)

    The second category includes cases where the verdicts were set aside based on errors in law or the weight of evidence in conjunction with improper arguments and remarks of attorneys. See Rodriguez v. New York City Housing Authority, 209 AD2d 260 (1st Dept 1994); Nuccio v. Chou, 183 AD2d 511 (1st Dept 1992), lv dismissed 81 NY2d 783 (1993); Clarke v. New York City Transit Authority, 174 AD2d 268, 277 (1st Dept 1992).

  6. Betancourt v. Trump Empire State Partners

    2007 N.Y. Slip Op. 31677 (N.Y. Sup. Ct. 2007)

    UNSWORN WITNESS "It is well settled that trial counsel improperly acts as an unsworn witness, [in violation of Code of Professional Responsibility DR 7-106], when he injects 'unsworn statements of personal knowledge of the facts of the case'" ( Clarke v. New York City Transit Authority, 174 A.D.2d 268, 276). Counsel also violates DR 7-106 when counsel asserts a personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused (DR 7-106[3]).

  7. Lopez v. Wyckoff Heights Hosp. Med. Ctr.

    33 Misc. 3 (2d Cir. 2012)

    Plaintiff contends on appeal that it was error for the Civil Court to refuse her request to charge the Noseworthy rule, to preclude Dr. Whalen from testifying, and to fail to separate the alleged departures as to each individual defendant. Under the particular circumstances of this case, where the cause of action for wrongful death had been dismissed, it was not error for the trial court to decline to charge the reduced standard of proof under the Noseworthy rule (see e.g. Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392 [2003]; Clarke v New York City Tr. Auth., 174 AD2d 268, 275 [1992]). Nor was it an improvident exercise of discretion for the trial court to preclude Dr. Whalen's testimony after finding that there was an inadequate basis for Dr. Whalen's opinion.

  8. Gerardo v. Breton

    2023 N.Y. Slip Op. 157 (N.Y. App. Div. 2023)

    The court providently exercised its discretion in compelling the production of a complete copy of the training manual, in light of the liberal discovery rules (see CPLR 3101[a]; Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406-407 [1968]). The manual may shed light on the standard of care applicable to defendant bus driver's operation of the bus, and whether the driver breached it by, among other things, allegedly signaling to plaintiff that it was safe to cross the street when it was unsafe to do so (see Clarke v New York City Tr. Auth., 174 A.D.2d 268, 275 [1st Dept 1992]; see also Nichter v Hartley, 192 A.D.2d 842, 844 [3d Dept 1993]). Although plaintiff did not assert a claim for negligent training, the manual may still yield information relevant to the prosecution of her claims (see Forman v Henkin, 30 N.Y.3d 656, 661 [2018]; cf. Tangalin v MTA Long Is. Bus, 92 A.D.3d 766, 767-768 [2d Dept 2012]).

  9. Foster v. Suffolk Cnty. Police Dep't

    199 A.D.3d 658 (N.Y. App. Div. 2021)   Cited 1 times

    Here, the rules and regulations at issue imposed a higher standard of care than the reckless disregard standard imposed by Vehicle and Traffic Law § 1104, which " ‘qualifiedly exempts drivers of emergency vehicles from certain traffic laws when they are involved in an emergency operation, and precludes the imposition of liability for otherwise privileged conduct except where the driver acted in reckless disregard for the safety of others’ " ( Wonderly v. City of Poughkeepsie, 185 A.D.3d 632, 633, 125 N.Y.S.3d 734, quoting Thomas v. City of New York, 172 A.D.3d 1132, 1133, 100 N.Y.S.3d 318 ). Thus, we conclude that the Supreme Court committed reversible error in admitting the internal rules without providing a limiting instruction that the rules could be considered only as some evidence of recklessness along with other factors (seeO'Connor v. City of New York, 280 A.D.2d 309, 309, 719 N.Y.S.2d 656 ; Clarke v. New York City Tr. Auth., 174 A.D.2d 268, 276, 580 N.Y.S.2d 221 ; see alsoSaarinen v. Kerr, 84 N.Y.2d 494, 503 n. 3, 620 N.Y.S.2d 297, 644 N.E.2d 988 ). In light of our determination, we need not reach the Suffolk County defendants’ remaining contentions.

  10. Lopez v. City of N.Y.

    192 A.D.3d 634 (N.Y. App. Div. 2021)   Cited 6 times

    Trial counsel is afforded wide latitude in presenting arguments to a jury on summation (Chappotin v City of New York, 90 AD3d 425, 426 [1st Dept 2011], lv denied 19 NY3d 808 [2012]). However, counsel may not engage in deliberate or persistent efforts to divert the jury's attention from the relevant issues to be determined (Clarke v New York City Tr. Auth., 174 AD2d 268, 278 [1st Dept 1992]). This Court has found, in some circumstances, that implorations to juries to "send a message" are improper (see People v Espada, 205 AD2d 332, 332-333 [1st Dept 1994]).