Piacente v Bernstein,
127 A.D.3d 1365, 6 N.Y.S.3d 793 [3rd Dept., 2015]
At the beginning of the trial, where there are six jurors in the box, plus alternates, should the alternates be separately designated from the beginning? Or, should the designation of alternates be made just before the jury retires to deliberate? The perceived problem with advance designation of alternates is that the alternates might assume that they will not be needed, and so be tempted to pay less than full attention to the trial. Delaying the designation maintains the suspense, and is thought to make all of the jurors more likely to concentrate.
This case presented a conflict between the CPLR and local rules for the designation of alternates, and it is noted here only to point out the problem. Supreme Court, Albany County, held that the local rule could not be imposed over a party’s objection, and wound up directing a new trial. The Appellate Division contented itself with noting that Supreme Court acted within its discretion, but did not resolve the conflict in procedures.
Warner v Orange County Regional Med. Ctr.,
___ AD3d ___, 2015 NY Slip Op 02113 [2d Dept., 2015]
It is a sad fact of life in the courts that no attorney can be in two places at once. (A sub-atomic particle can be in two places at once, but only until someone sees it. Then the wave function collapses and it’s stuck. Or so they tell me.)
Here, a week before the scheduled trial date, plaintiff’s counsel notified defendant’s counsel by fax that he was already on trial, that the trial was expected to continue for another three weeks, and requesting an adjournment. Defense counsel opposed the adjournment, and sent a letter to the trial court including the plaintiff’s fax. The court refused the adjournment in a written order, which specified that the plaintiff’s failure to appear would result in dismissal and refusing in advance to accept any affirmation of actual engagement.
On the trial date, substitute counsel appeared, with an affirmation of actual engagement, and stated that the plaintiff was not ready to proceed, whereupon the court dismissed the action. Read More
Tricham Hous. Assoc., L.P. v Klein,
113 A.D.3d 432, 978 N.Y.S.2d 162 [1st Dept., 2014]
Where is the line in compensating a fact witness?
“In an attempt to settle the claims and counterclaims between them, plaintiff and defendant Emanuel Panitz entered into a Memorandum of Understanding (MOU) pursuant to which Panitz’s legal fees would be paid, provided that the claims of defendants Allan Klein, Lobby Design Group, and Steeltech SA (the LDG defendants, collectively) failed. In exchange for this, Panitz assigned plaintiff his remaining cross claims against the LDG defendants. This agreement is void and unenforceable as against public policy. Although his claims against plaintiff have been settled, Panitz is still a witness in this action. Permitting the MOU to stand as it is, with the payment of Panitz’s legal fees conditioned on the failure of his former co-defendants’ claims, creates an incentive for Panitz to falsify his testimony, an incentive that has long been disfavored.”
In 2013, we saw Caldwell v Cablevision Sys. Corp., where the Court of Appeals allowed a fact witness, who happened to be a physician, to demand and collect a fee of $10,000 for one hour of testimony. Read More
Patino v County of Nassau,
___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00509 [2d Dept., 2015]
Two golf carts collided on a turn in a path at the Garden City Country Club. The plaintiff, driver of one cart, was injured, severely enough to need “numerous surgeries.” The driver of the other cart claimed that the plaintiff was speeding on the cart path.
Plaintiff here moved for a unified trial, on the grounds that proof of the injuries he sustained would support his claim that he was not speeding and hence bore significantly on the issue of liability. As proof, he submitted an affidavit from an expert in mechanical engineering, accident reconstruction and biomechanics claiming that the injuries proved that he could not have been traveling more than three miles per hour. Supreme Court agreed, and ordered a unified trial.
The Appellate Division, however, wasn’t buying it and reversed.
Fudge v North Shore-Long Is. Jewish Health Servs. Plainview & Manhasset Hosps.,
117 A.D.3d 783, 986 N.Y.S.2d 490 [2d Dept., 2014]
Dismissal of a cause of action is only rarely warranted on opening statements alone. Here, in a medical malpractice wrongful death case, the court went so far as to dismiss a case during the plaintiff’s opening, on its own motion. Unsurprisingly, the Appellate Division reversed, and sent the matter back for a new trial, before a different Justice. Read More
Alleyne v Grant, ___ AD3d ___, ___ NYS2d ___, 2015 NY Slip Op 00321 [2nd Dept., 2015]
Where the parties have consented to trial by a referee to hear and determine (rather than to merely hear and report) the determination of the referee “shall stand as the decision of a court.” (CPLR 4319) Therefore, no motion to confirm the determination is necessary.