Opinion
Index No. 18680/2012 Calendar No. 51 Mot Seq No. 35
10-14-2024
CHRISTOPHER PITT, Plaintiff, v. LOIS M ROSENBLATT As Administrator Of The Estate Of Decedent Defendant, ADAM MROZ, MANCO EQUIPMENT RENTAL COMPANY, INC. Defendants.
Unpublished Opinion
PRESENT: HON. HEELA D. CAPELL, JUSTICE
HON. HEELA D. CAPELL, JUSTICE
The following e-filed papers read herein:.........................NYSCEF Doc Nos
Notice of Motion/Order to Show Cause and................
Affidavits (Affirmations) Annexed..................256-274
Opposing Affidavits (Affirmations)..............275
Affidavits/ Affrrmations in Reply...........276
Other Papers:
Upon the foregoing papers, the decisioi1 and order of the court is as follows:
In this action, Christopher Pitt ("Plaintiff') sought damages against Lois M Rosenblatt As Administrator Of The Estate Of Decedent Defendant, Adam Mroz, and Manco Equipment Rental Company, Inc. ("Defendants") for injuries he allegedly sustained during a vehicular collision. A jury trial was conducted before this court over the course of eleven days after which the jury came back with a verdict in favor of the Defendants. Plaintiff now moves to set aside the verdict pursuant to CPLR 4404(a) on four grounds: the Plaintiff is entitled to a judgment notwithstanding the verdict; the Plaintiff is entitled to a new trial as the verdict is "contrary to the evidence and contrary to well established law"; the court erred in its rulings on three motions in limine', and Defendants' counsel's remarks in summation were so inflammatory that they tainted the verdict. Defendants oppose the motion.
Prior to appearing before this court, the parties stipulated that at trial the Defendants would present their emergency doctrine defense first and the Plaintiff would present his negligence case second (tr. at 2-3). This court did not disturb the agreement and permitted the parties to proceed as stipulated (tr. at 2-3). After Defendants rested their case, Plaintiff moved as follows: "Plaintiff moves for a directed verdict. The undisputed evidence is that Mr. Mroz while operating his Mack truck collided into the rear of Mr. Pitt While he was stopped. That's a statutory violation. That's negligence per se. I ask for a directed verdict on that issue. I understand, however, that doesn't resolve the issue for the Court. There's emergency doctrine [sic] affirmative defense is asserted here that the jury has to decide. The jury doesn't have to decide that's a statutory violation and that's negligence per se" (tr. at 991-992). Plaintiff's counsel further stated that that the jury only needed to decide Defendants' emergency doctrine defense and not the issue of negligence (id.). Defendants' counsel opposed the application because at that point in the trial Plaintiff had not raised nor established that Defendants' violated any statutes, nor were: negligent per se (tr. at 992). The court reserved decision on the application.
That same day, the court conducted a charge conference. Both parties had submitted proposed requests to charge and proposed verdict sheets and included similar questions on their verdict sheets (NY St Cts Elec Filing [NYSCEF] Doc No. 239, 245 and 251). Contrary to his position during the directed verdict motion. Plaintiffs counsel was adamant that the question of negligence must be on the verdict sheet. During the conference. Plaintiff stated his objections to the verdict sheet as follows: "Judge, I object to a compound question. It really implies to the jury that the only negligence they need to consider is negligence after the occurrence of a medical emergency" (tr. at 1048-1050). The court asked, "So your problem with the compound question is the implication?" (tr. at 1050). Plaintiff's counsel responded: "That's right" (rd.). He argued "It doesn't end tire trial. 2:82 envisions that it doesn't end the trial. 2:82 envisions if it's a no, then the jury still has to find there's no negligence" (tr. at 1051). The court noted that this argument was directly contradictory to Plaintiff's earlier position, and that adding negligence to the verdict sheet as a separate question would work in Defendants' favor, not in Plaintiff's favor (tr, at 1052). Nonetheless, Plaintiff insisted on the negligence question being on the verdict sheet after the emergency doctrine question (id.). "If they answer - if the jury answers yes to question one, are you saying that's a hard stop?" (tr. at 1055). The court replied, "Yes" (id.). Plaintiff's counsel responded: "My objection is under PJI 2:82, that if the jury finds the emergency doctrine applied, that's not a hard stop. I'm entitled to a separate question after that by the jury was there negligence..." (id.). At Plaintiff's request, the court kept the second question of negligence on the verdict sheet (tr. 1056-1057).
At the conclusion of the conference, the verdict sheet read as follows: for Question 1, "Did the Decedent Defendant Adam Mroz experience a sudden, unforeseen medical emergency, such as a seizure, prior to the accident of January 30, 2012, and was his operation of the vehicle reasonable under the circumstances?" ("Question 1") For Question 2: "Was the Decedent Defendant Adam Mroz negligent in the operation of the vehicle?" ("Question 2") For Question
3: "Was the negligence of Decedent Defendant Adam Mroz a substantial factor in causing the accident of January 30, 2012?" ("Question 3").
At the close of all of the evidence, the jury finished their deliberations and returned a verdict that included "no" as the answer to Question 1, and "no" as the answer to Question. 2, Before the. jury was discharged, neither party objected to the verdict as inconsistent nor requested that the jury be asked to clarify or reconsider their verdict.
At the outset, the. court will consider Plaintiff's directed verdict motion made at trial pursuant to CPLR 4401. At trial, and at the close of Defendants' case but before Plaintiff's case, Plaintiff requested a directed verdict in his favor on his prima facie case, based upon negligence per se (see CPLR 4401). The court reserved decision. Later that same day, Plaintiff argued that the verdict sheet must include the prima facie negligence question for the jury to decide. The court noted on the record that Plaintiff's position had changed from stating that negligence had been established to insisting the jury determine the issue. Accordingly, Plaintiff's prima facie negligence questions were added to the verdict sheet at counsel's request.
However, Plaintiff's directed verdict motion is denied as the evidence did not support a finding of judgment as a matter of law on the issue of negligence per se at the time the application was made, and in light of Plaintiff's counsel's subsequent contradictory request to add the negligence question to the verdict sheet.
As to Plaintiff's instant motion, the first argument is that he is entitled to a judgment notwithstanding the verdict ("JNOV") (CPLR 4404[a]). Plaintiff argues that he satisfied his burden to demonstrate the occurrence of a rear end collision as a matter of law, and therefore, the jury's response to Question 1 should be retained, and their response to Question 2 should be disregarded. CPLR 4404(a) states: "...[T]be court may set aside a verdict...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 [or] in the interest of justice..."
It is well established that a party's failure to make a directed verdict motion upon an issue during the trial constitutes a waiver of any claim to a JNOV upon that issue (Is. Assoc. Real Estate, Inc. v Doukas, 130 A.D.3d 684 [2d Dept 2015]). The rationale behind this rule is that if a party fails to so move, they have conceded that the issue is a question of fact for the jury (see Miller v. Miller, 68 N.Y.2d 871, 873 [1986]; Williams v Hew York City Tr. Auth., 121 A.D.3d 780 [2d Dept 2014]; Hurley v Cavitolo, 239 A.D.2d 559 [2d Dept 1997]). Here, Plaintiff's counsel waived his right to a JNOV on the issue of negligence due to a rear end collision. Plaintiff's counsel's motion for a directed verdict was based upon the theory of negligence per se, i.e., a breach of Vehicle and Traffic Law § 1129(a). However, in the instant motion, Plaintiff argues that he is entitled to judgment notwithstanding the verdict on the theory of a "rear end collision," which is a common law theory of negligence (affirmation of plaintiff's counsel in support of mot at 5). Plaintiff also insisted that the question of negligence should be placed on the verdict sheet and decided by the jury, contrary to his position on his directed verdict motion.
Based on Miller, and its progeny, the court finds that the directed verdict motion cannot serve as a predicate for this motion for JNOV (see Is. Assoc. Real Estate, Inc. v. Doukas, 130 A.D.3d 684 [2d Dept 2015]). Plaintiff's request for a judgment based upon "rear end collision" was not preserved. For all of the foregoing reasons, Plaintiff's instant motion for JNOV must be denied.
Plaintiff argues, in the alternative, that he is entitled to a new trial as the finding that Defendant was not negligent is "contrary to the evidence and Contrary to well established law" (plaintiff's aff in support of mot at 10). Defendants maintain that Plaintiff's argument is an improper, inconsistent verdict argument, which cannot be raised after the jury has been discharged (Ahmed v Port Auth. of New York, 131 A.D.3d 493 [2d Dept 2015], Grivas v MTA Bus Co., 205 A.D.3d 776 [2d Dept 2022], Grayiano v New York City Tr. Auth., 202 A.D.3d 932 [2d Dept 2022]).
In Ahmed, the plaintiff alleged that he was occupying a bathroom stall on property owned and operated by co-defendants when the stall door fell off its hinges and struck him in the head (Ahmed at 494). After trial on the issue of liability, the jury returned a verdict finding, in part, that co-defendant Port Authority was negligent but such negligence was not a proximate cause of the accident (id,). On appeal, Plaintiff argued, inter alia, that the verdict was inconsistent (id.). The Appellate Division, Second Department held that because Plaintiff had not raised the issue of inconsistent verdict before the jury was discharged, Plaintiff's claim that the verdict was inconsistent was not preserved for appellate review" (id. at 495).
Here, Plaintiff claims that as the jury answered Question 1 in the negative, they could not then answer Question 2 in the negative. However, this is plainly an argument for an inconsistent verdict. Plaintiff's counsel did not object to the verdict as inconsistent prior to discharge of the jury. As such, any argument that the verdict is inconsistent is now waived (see e.g. Barry v. Manglass, 55 N.Y.2d 803 [1981] ['If the inconsistency had been raised, the trial court could have taken corrective action before the jury was discharged, such as resubmitting the matter to the jury. Because the issue was not raised until long after any steps could have been taken by the trial court to cure the inconsistency, it cannot serve as a predicate for a reversal by this court"]).
Furthermore, the court finds that Plaintiff's arguments are an attempt to relitigate issues with respect to the verdict sheet. Plaintiff was given an opportunity to raise objections to each of the questions at the trial before the jury was given the case, and the verdict sheet reflects that changes were made to the questions based on Plaintiff's counsel's objections. However, Plaintiff's objections at the trial were different from the issues he is raising in this motion, and are therefore not preserved (CPLR 4110-b). Plaintiff now argues that "'Question 1' should be broken down into two questions [parts] asking (1) whether Mroz suffered a sudden medical emergency and (2) whether he acted reasonably, i.e. was negligent, under the circumstances. That should conclude the jury's inquiry" (affirmation of plaintiff's counsel in support of mot at 11). The court notes that the two verdict sheets Plaintiff submitted prior to the charge conference did not include these proposed questions (NYSCEF Doc. No. 239, 251). Additionally, at the Conference, Plaintiff insisted that the issue of Plaintiff's negligence needed to be included on the verdict sheet as a separate inquiry, after Question 1 (tr. at 1055). Plaintiff also insisted that Question 1 needed to be rephrased from "was his response to the emergency reasonable" to "was his operation of the vehicle reasonable under the circumstances" so as not to "imply" to the jury that an emergency occurred. However, he did not object to Question 1 on the basis that it was a compound question (tr. at 1050).
To the extent Plaintiff argues that the jury 's verdict was "contrary to the weight of the evidence," this court finds Plaintiff's argument unavailing. First and foremost, Plaintiff uses the bulk of his motion on the issue of JNOV. Plaintiff briefly cites Lolik v. Big V Supermarkets for the principle that jury verdicts should not be set aside as contrary to the weight of the evidence unless the evidence so preponderated in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence (Lolik v Big V Supermarkets, Inc., 86 N.Y.2d 744 [1995]). However, Plaintiff's motion makes scant mention of the evidence as it relates to this "fair interpretation of the evidence" standard. Regardless, "it is for the jury to make determinations as to the credibility of the witnesses, and deference in this regard is accorded to the jury, which had the opportunity to see and hear the witnesses" (Scarpulla v Williams, 147 A.D.3d 1101 [2d Dept 2017]). The court notes that the Plaintiff testified in his Own capacity as the sole witness on his case. Plaintiff had the opportunity to call other witnesses but failed to do so.
Notably, "particular deference has traditionally been accorded to jury verdicts in favor of defendants in tort cases because the clash of factual contentions is often sharper and simpler in those matters and the jury need not find that a defendant has prevailed by a preponderance of the evidence but rather may simply conclude that the plaintiff has failed to meet the burden of proof requisite of establishing the defendant's culpability" (Nicastro v Park, 113 A.D.2d 129, 134 [2d Dept 1985]). For all of the foregoing reasons, Plaintiff has not met his burden to demonstrate that the jury verdict was against the weight of the evidence.
Plaintiff also proffers alternate theories upon which a new trial should be awarded based upon the interests of justice (CPLR 4404[a]). Plaintiff bases this argument upon each of the following grounds: (1) defense counsel made improper remarks jury summation and (2) the Court committed several evidentiary errors, including; (i) permitting defendants' expert biomechanical engineer to testify, (ii) precluding Mr. Mroz's Workers' Compensation Records, and (iii) precluding Mroz's death certificate and autopsy report.
"A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise. In considering such a motion, "[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that tire verdict has been affected and 'must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision."[Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 N.Y.2d 376, 381, [1976] [internal citations omitted]).
First, Plaintiff argues that defense counsel's remarks in summation constituted a "fundamental error" and tainted the verdict. Plaintiff cites to statements made by Defendants' counsel during summation in support. However, Plaintiff's counsel did not object to any of these statements. "Where no objection is interposed, a new trial may be directed only where the remarks are so prejudicial as to have caused a gross injustice, and where the comments are so pervasive, prejudicial, or inflammatory as to deprive a party of a fair trial" (Kleiber v Fichtel, 172 A.D.3d 1048 [2d Dept 2019]). Here, the statements highlighted by Plaintiff do not rise to this level.
The following example is illustrative: Plaintiff's counsel cites a portion of the Defendant's summation as a "smear campaign," (tr. at 1106 et seq.) and where Defendants' counsel took exception to Plaintiff's counsel asking defendant Mroz's daughter, Katarzyna Szczesny, whether her father was diagnosed with cirrhosis of the liver (tr. at 253). Plaintiff's counsel argues that "[t]his impassioned accusation is particularly unfair and unprofessional given: (a) that the Court barred me from making the connection I intended to make..." (affirmation of plaintiff's counsel in support of mot at 15).
Previously, during that cross-examination, after Plaintiff's counsel asked Ms. Szczesny this question about cirrhosis of the liver, Defendants' counsel objected, and the objection was sustained by the court. (Id.) Plaintiff's counsel asserted nonetheless that the testimony should come in subject to connection, however, Defendants' counsel objected again and the objection was again sustained, (Id.) After Ms, Szczesny's testimony concluded. Defendants' counsel alluded to the possibility of moving for a mistrial due to this question as it was entirely baseless, unfounded, and unduly prejudicial (tr. at 258-260). Plaintiff's counsel stated that the basis for the question was that "it actually says [it] in the medical records [of Dr. Jerzy Wawerski]" (tr. at 260). The court asked Plaintiff's counsel how he planned to establish what Dr. Wawerski wrote in his medical records, as Dr. Wawerski was not on his witness list (tr. at 261). Plaintiff's counsel answered that he would either introduce Dr, Wawerski's medical records into evidence or call him as a witness (tr. at 261-262). The court instructed Plaintiff's counsel that there was no apparent foundation for the question and that perhaps the prejudice could be cured if a' foundation could be established (tr. at 262-263). Defendants did not ultimately move for a mistrial at that time.
Later in the trial. Defendants, not the Plaintiff, called Dr. Wawerski to testify (tr. at 907), as Plaintiff's counsel would not disclose whether he would call Dr. Wawerski as a witness. Defendants' counsel asked Dr. Wawerski whether anything in his records indicates that Mroz used or abused alcohol (tr; at 930). Dr. Wawerski answered that nothing in the records indicated that (tr. at 930). Defendants moved Dr. Wawerski's medical records into evidence. Plaintiff's counsel cross-examined Dr. Wawerski, but did not ask Dr. Wawerski about any reference to cirrhosis of the liver in his records (tr. at 931-944).
Now, however, Plaintiff's counsel attaches to his motion page 44 from Dr. Wawerski's records that purportedly states "cirrhosis liver" (NYSCEF Doc. No. 273). Plaintiff's counsel had brought this note to the court and Defendants' counsel's attention during the trial, and never asked Dr. Wawerski to clarify it on cross-examination nor called Dr. Wawerski as his own witness. Further, Dr. Wawerski swore under oath that there was nothing in the medical records to suggest that defendant Mroz abused alcohol - which a reference to "cirrhosis liver" seemingly would.
Therefore, Plaintiff's allegation that Defendants' counsel conducted a "smear campaign," is entirely without merit. Particularly, where Plaintiff's counsel introduced a potentially prejudicial and unsupported allegation during the trial. Moreover, while counsel insisted he could make the connection to cirrhosis of the liver, he failed to do so when Dr. Wawerski was on the stand. Accordingly, Defendants' counsel's remarks at summation neither constituted "fundamental error" nor "tainted the verdict."
Lastly, Plaintiff argues that a new trial is warranted as a result of this court's previous rulings (i) permitting Dr. Fijalkowski's testimony, (ii) precluding Mr. Mroz's Workers' Compensation records, and (iii) precluding Mr. Mroz's death certificate and autopsy report. Each of these pre-trial rulings was based upon fully briefed and argued motions in limine. The court finds no basis to revisit or disturb these rulings.
Accordingly, it is hereby
ORDERED that Plaintiff's motion for judgment notwithstanding the verdict is denied; and it is further
ORDERED that Plaintiff's motion for a new trial based upon an inconsistent verdict is denied; and it is further
ORDERED that Plaintiff's motion for a new trial in the interest of justice is denied. This constitutes the decision and order of the Court.