November 2017 Summing Up
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Defense Counsel's Statements at Trial Did Not Improperly Reference Insurance Coverage

Boehm v Rosario, ___ AD3d ___, 2017 NY Slip Op 07049 (4th Dept. 2017), is a negligence action in which plaintiff sought damages for injuries allegedly sustained in a motor vehicle accident. After trial, the jury found both plaintiff and defendant negligent, apportioned fault, and also found that plaintiff did not sustain a "serious injury" under the Insurance Law.

On appeal, plaintiff's main contention was that she was entitled to a new trial because defense counsel, who was retained by defendant's insurance carrier, repeatedly made statements to the jury implying that defendant did not have insurance and that defendant should not be held responsible for certain medical expenses. Defense counsel's comments, which occurred during both opening and closing statements, included the following:

"You know, he's an immigrant, he works full time, he has two jobs, and just trying to make a living."

Defendant "hired me to defend him in this lawsuit."

Plaintiff, who "wasn't working at the time of the accident," is "trying to get money from my client."

"I don't think it's my client's responsibility to pay this woman."

"Should my client be responsible for paying this woman's [medical] bills?"

"[Defendant] shouldn't have to pay for plaintiff's pain medication."

"I don't think my client should have to pay for" certain of plaintiff's claimed expenses arising from the accident.

Generally, references to insurance coverage are irrelevant to the issues and are improper because of their prejudicial nature. See Leotta v Plessinger, 8 N.Y.2d 449, 461 (1960). However, in rejecting plaintiff's claim, the majority opinion found that defense counsel never stated or implied that defendant lacked insurance coverage for the accident or would have to pay out of pocket. According to the court, "defense counsel's references to defendant as her 'client' were not improper, and her statements that defendant should not be held 'responsible' for certain medical expenses were in response to plaintiff's testimony and the arguments of plaintiff's counsel."

The lone dissenting justice disagreed with the majority on this point, opining that defense counsel's comments "may very well have engendered sympathy [for defendant] in the jurors' minds," thus depriving plaintiff of a fair trial.

Plaintiff's other contention, that she was entitled to a new trial based on alleged cumulative error during trial, was also rejected by the court. The court determined there was no error by the trial court in failing to take judicial notice of a certain mathematical computation on speed and distance because this was never requested by the plaintiff. The court also did not abuse its discretion in not allowing redirect examination and limiting the duration of cross-examination for certain witnesses because these rulings were based on time constraints, and plaintiff had the opportunity to have witnesses returned the following day but chose not to do so.

Amended Answer Was Permissible Where Theory of Recovery in New Cross Claim Arose Out of the Same Occurrence Set Forth in Original Pleadings

In Taylor v Deubell, 153 A.D.3d 1662 (4th Dept. 2017), plaintiff sought damages for injuries she sustained in May 2012 while she was a passenger in a bus driven by defendant Darlene Deubell and owned by defendants First Student, Inc. and Firstgroup America, Inc. (collectively, First defendants). The bus allegedly hit a pile of gravel left in the road by defendant Masters Edge, Inc. and struck a nearby house.

The First defendants' answer, served timely in October 2012, included a cross claim seeking indemnification and contribution from Masters Edge. After the trial on liability in 2015, the First defendants sought leave to amend their answer to include a second cross claim against Masters Edge for property damage and loss of use of the bus. Technically, the statute of limitations for the proposed cross claim had expired over seven months earlier (see CPLR 214 [4]), but the First defendants contended that the amendment should be permitted because it related back to the original pleading (see CPLR 203 [f]).

The Supreme Court granted the motion to amend. The Fourth Department affirmed, concluding that the Supreme Court did not abuse its discretion in finding that the new theory of recovery against Masters Edge arose out of the same occurrence set forth in the original pleadings, i.e., a motor vehicle accident allegedly caused by the negligence of Masters Edge.

Defendant Failed to Overcome Presumption That the Driver of a Vehicle Operates with the Owner's Permission

In Rhodes v Scott, 153 A.D.3d 1661 (4th Dept. 2017), the Fourth Department affirmed the Supreme Court's denial of summary judgment to defendant, Darryl Epps. The action was commenced by plaintiff seeking damages for injuries she sustained when she was struck in a hit and run accident by a vehicle owned by defendant Epps and allegedly driven by defendant Jenny Scott. Epps moved for summary judgment to dismiss the complaint against him on the ground that Scott operated the vehicle without his permission.

According to the Fourth Department, the Supreme Court properly denied the motion because defendant failed to meet his initial burden. Under VTL § 388 (1), there is a strong presumption that the driver of a vehicle is operating with the owner's permission and consent, express or implied, and that presumption continues until rebutted by substantial evidence to the contrary (Liberty Mut. Ins. Co. v General Acc. Ins. Co., 277 A.D.2d 981, 981-982 (4th Dept. 2000) (emphasis added). The uncontradicted testimony of a vehicle owner that the vehicle was operated without his permission, by itself, does not overcome the presumption of permissive use (Talat v Thompson, 47 A.D.3d 705, 706 (2nd Dept. 2008). Contrary to Epps' contention, Scott's unsworn statement that she was not driving the vehicle and did not know him was inadmissible and could not be considered in support of his motion.

Summary Judgment Granted to Plaintiff on Appeal Where Defendant Was Negligent in Turning Left Into Oncoming Traffic at Intersection

In Giwa v Bloom, ____A.D.3d___, 2017 NY Slip Op 07430 (2nd Dept. 2017), plaintiff commenced action to recover damages for personal injuries sustained when her motor vehicle was struck by defendant's vehicle, which turned left at an intersection against the right of way. Plaintiff moved for summary judgment on the issue of liability and for dismissal of defendant's first and second affirmative defenses, which alleged that plaintiff was comparatively at fault in the accident and that she failed to wear a seatbelt. The Supreme Court denied summary judgment, and the Second Department reversed, citing Vehicle and Traffic Law § 1141 and the deposition testimony of plaintiff and defendant.

Under VTL § 1141, "the driver of a vehicle intending to turn to the left within an intersection . . . shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." Here, plaintiff established, prima facie, that defendant was negligent in violating VTL § 1141 by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety. Defendant testified at her deposition that she observed plaintiff's oncoming vehicle prior to the accident, but she thought she had enough time to cross the opposite lane of travel. According to the Second Department, the undisputed fact that the defendant was, in fact, unable to complete her turn without being struck by the plaintiff's vehicle is compelling evidence of the immediate hazard created by the plaintiff's vehicle as it approached the intersection.

Plaintiff also demonstrated that defendant's negligence was the sole proximate cause of the accident, and that she was not comparatively at fault in the accident because the traffic light was in her favor, and because she slammed her brakes in an unsuccessful attempt to avoid the collision. Plaintiff's deposition testimony further established that she was wearing her seatbelt at the time of the accident.

Defendant's submission, which contained only an attorney affirmation, failed to raise a triable issue of fact in opposition to plaintiff's motion.

Prepared by Andrew Fiske, Esq. and Thomas Kawalec, Esq.

phone: 716-852-3600

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