Searcy v. N.Y.C. Transit Auth.

20 N.Y.S.3d 294 (Table)

Johnny L. SEARCY, Plaintiff,

v.NEW YORK CITY TRANSIT AUTHORITY, Metropolitan Transit Authority and Lawrence Torinese, Defendants.

No. 7141/12.

Supreme Court, Kings County, New York.

Aug. 7, 2015.

Alan M. Shapey, Esq., Lipsig Shapey Manus & Moverman, PC, New York, for Plaintiff.

Mark S. Yagerman, Esq., Smith Mazure Director Wilkins Young & Yagerman, PC, New York, Defendant.

ARTHUR M. SCHACK, J.

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

Papers	Numbered:
Notice of Motion/Affirmation Annexed	1
Affirmation in Opposition	2
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 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....