Bhim v. Platz

207 A.D.3d 511

172 N.Y.S.3d 54

Jane BHIM, et al., appellants,

v.John PLATZ, etc., defendant,Donna Marchant, et al., respondents.

2019-00637

Index No. 20791/08

Supreme Court, Appellate Division, Second Department, New York.

Submitted—April 14, 2022

July 13, 2022

Marcel Weisman, New York, NY (Rhona A. Silverman of counsel), for appellants.

Heidell Pittoni Murphy & Bach LLP, New York, NY (Daniel S. Ratner of counsel), for defendant and for respondents (one brief filed).

VALERIE BRATHWAITE NELSON, J.P., ANGELA G. IANNACCI, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered November 19, 2018. The order, insofar as appealed from, denied those branches of the plaintiffs’ motion which were pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendants Donna Marchant and North Shore University Hospital and against them on the issue of liability and for a new trial, and for a judgment declaring that defense counsel perpetrated a fraud upon the court.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In June 2005, the plaintiff Jane Bhim (hereinafter the patient) underwent a medical procedure at the defendant North Shore University Hospital (hereinafter North Shore). Immediately after the procedure, various complications ensued and, as a result, the patient underwent multiple treatments and surgeries at North Shore.

Thereafter, the patient, and her spouse suing derivatively, commenced this action, among other things, to recover damages for medical malpractice against North Shore and the defendant Donna Marchant (hereinafter together the defendants), and the matter proceeded to a jury trial in the Supreme Court on that cause of action. During his summation, defense counsel displayed to the jury a printed enlargement of what purported to be an excerpt of the verbatim trial testimony of the plaintiffs’ expert witness. Defense counsel emphasized that, on cross-examination, the witness had responded affirmatively to a particular question, which consisted of two parts, separated by intervening colloquy among the attorneys and the court. During jury deliberations, it came to light that the printed enlargement had excised not only the intervening colloquy but also the second portion of the subject question.

The court then suspended deliberations, informed the jury that the demonstrative reproduction of the testimony was incorrect, provided the jury with a read-back of the correct testimony, and reminded the jury that summations do not constitute evidence.

Thereafter, the plaintiffs’ counsel requested, inter alia, that the Supreme Court strike the defendants’ answer and direct a verdict in favor of the plaintiffs or, alternatively, grant a mistrial, on the basis that defense counsel had perpetrated a fraud on the court by misrepresenting the testimony of the plaintiffs’ expert witness during his summation. The court denied the application.

The jury returned a verdict in favor of the defendants. The plaintiffs moved, among other things, pursuant to CPLR 4404(a) to set aside the verdict and for a new trial in the interest of justice, on the ground that they were deprived of a fair trial as a result of defense counsel's presentation of the inaccurate reproduction of the trial testimony, and pursuant to CPLR 3001 for a judgment declaring that defense counsel had committed a fraud on the court by virtue of the aforementioned conduct. By order entered November 19, 2018, the Supreme Court, inter alia, denied those branches of the plaintiffs’ motion. The plaintiffs appeal.

"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" ( Simon v. Granite Bldg. 2, LLC, 170 A.D.3d 1227, 1231, 97 N.Y.S.3d 240 [internal quotation marks omitted]). In considering such a motion, a trial judge must decide "whether substantial justice has been done" and "whether it is likely that the verdict has been affected," and must rely on his or her own "common sense, experience and sense of fairness" ( Micallef v. Miehle Co., Div. of Miehle–Goss Dexter, Inc., 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571 [internal quotation marks omitted]; see Daniele v. Pain Mgt. Ctr. of Long Is., 168 A.D.3d 672, 676, 91 N.Y.S.3d 496 ).

Misconduct amounting to a fraud on the court "involves wilful conduct that is deceitful and obstructionistic, which injects misrepresentations and false information into the judicial process so serious that it undermines the integrity of the proceeding" ( CDR Cre´ances S.A.S. v. Cohen, 23 N.Y.3d 307, 318, 991 N.Y.S.2d 519, 15 N.E.3d 274 [alterations and internal quotation marks omitted]; see JNG Constr., Ltd. v. Roussopoulos, 170 A.D.3d 1136, 1141, 96 N.Y.S.3d 655 ). "[I]n order to demonstrate fraud on the court, the nonoffending party must establish by clear and convincing evidence that the offending party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his [or her] adversary's defense of the action" ( CDR Cre´ances S.A.S. v. Cohen, 23 N.Y.3d at 320, 991 N.Y.S.2d 519, 15 N.E.3d 274 [internal quotation marks omitted]; see JNG Constr., Ltd. v. Roussopoulos, 170 A.D.3d at 1141, 96 N.Y.S.3d 655 ). "A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence,...