Caraballo v. City of New York

Appellate Division of the Supreme Court of New York

Caraballo v. City of New York

86 A.D.2d 580, 446 N.Y.S.2d 318, 1982 N.Y. App. Div. LEXIS 15106

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 28, 1982

StatusPublished

Cited by24 cases

This text of 86 A.D.2d 580 (Caraballo v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Caraballo v. City of New York, 86 A.D.2d 580, 446 N.Y.S.2d 318, 1982 N.Y. App. Div. LEXIS 15106 (N.Y. Ct. App. 1982).

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Opinions

Judgment, Supreme Court, New York County (Pécora, J.), entered September 18, 1980, on jury verdict, in favor of plaintiff, is reversed, on the law and the facts, and a new trial is ordered, without costs. We are compelled to reverse this judgment because of the grossly improper and inflammatory summation by plaintiffs’ attorney, Mr. Raymond B. Schwartzberg. The summation had as its continuing theme a personal attack on defendant-appellant’s attorney, unsubstantiated charges of peijury and subornation of peijury; racial overtones; and assertions of personal knowledge and personal opinion as to the case and the credibility of witnesses. Among the things that plaintiffs’ attorney said in his summation were: “this clever lawyer has been jabbing and moving around for two weeks with illegal procedures”; “[h]e is a tricky lawyer”; “he is skilled, experienced, tricky, deceptive, and that is what this is really all about, and that is what is happening here”; “and the only thing you do is give cleverer and perhaps evil adversary opportunity to twist people around in their words [explaining plaintiff’s failure to call some witnesses].” He further said, “They will say anything to beat this case because, ladies and gentlemen, there’s a lot of money involved here.” “They bring in a phony doctor for a price”. “He said yes, there will be a bill. How much do you charge for perjury, doctor?” “What is so great and exclusive about Manhattan Hospital where the doctors come down for a price and lie to you for a lawyer for a Housing Authority for a price, a price they wouldn’t tell you.” Combining charges of peijury and subornation of peijury with racial overtones, he said, “He brought in that poor black man. They put him up to coming here. They used him.” “He didn’t do it from pressure like that poor black man did, didn’t do it for that. He did it for money.” Adding to these the statements of his personal knowledge of the facts and his personal opinion as to the justness of his cause and the credibility of witnesses, in violation of DR 7-106(C) (3), (4) of the Code of Professional Responsibility, he said, “I forgive the black man, the person, I forgave him, but I cannot forgive Dr. Lisman, Emeritus for coming in and lying to you, and you know how I knew it? I smelled it because I said to him name one.” Referring to a valid and required assertion of physician-patient privilege, he said, “[W]hen this lawyer yelled privilege, I knew that was a lie”. Referring to a former drug addict witness for plaintiffs, he said, “I would invite him to my home for dinner. I see nothing wrong with him.” Also: “I am familiar with Dr. Budabin and his reputation as an eminent neurologist”. “[H]old your hats because I have a figure. I know what these cases are worth.” In Cohen v Covelli (276 App Div 375, 376), this court said: “A wide latitude is allowed to counsel in his summation and we have no desire to curb a vigorous, robust summation. A witness may be characterized as untruthful, as a falsifier, as a liar, and even as a peijurer. That is a matter of propriety, of good taste and of judgment, with which a court will not interfere. But there is some line to be drawn. Where, therefore, a lawyer, in his summation, charges that a witness testifying to material facts in a case has been ‘bought’ by the other side, when there is no basis in the evidence for any such charge, that statement is so highly objectionable and prejudicial as to require a new trial in a case involving sharply contested issues, particularly when the objectionable statement complained of was allowed to stand without prompt judicial rebuke.” In this and in the other respects noted, the summation for plaintiffs in the present case went far beyond the permissible line. We do not agree with our dissenting brother that there were adequate and effective curative instructions or admonitions by the court. We are unable to say that this inflammatory improper summation did not influence the jury’s verdict. Accordingly, we cannot let the verdict stand, and we order a new trial. Concur — Lupiano, Silverman and Bloom, JJ.

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Judgment, Supreme Court, New York County (Pécora, J.), entered September 18, 1980, on jury verdict, in favor of plaintiff, is reversed, on the law and the facts, and a new trial is ordered, without costs. We are compelled to reverse this judgment because of the grossly improper and inflammatory summation by plaintiffs’ attorney, Mr. Raymond B. Schwartzberg. The summation had as its continuing theme a personal attack on defendant-appellant’s attorney, unsubstantiated charges of peijury and subornation of peijury; racial overtones; and assertions of personal knowledge and personal opinion as to the case and the credibility of witnesses. Among the things that plaintiffs’ attorney said in his summation were: “this clever lawyer has been jabbing and moving around for two weeks with illegal procedures”; “[h]e is a tricky lawyer”; “he is skilled, experienced, tricky, deceptive, and that is what this is really all about, and that is what is happening here”; “and the only thing you do is give cleverer and perhaps evil adversary opportunity to twist people around in their words [explaining plaintiff’s failure to call some witnesses].” He further said, “They will say anything to beat this case because, ladies and gentlemen, there’s a lot of money involved here.” “They bring in a phony doctor for a price”. “He said yes, there will be a bill. How much do you charge for perjury, doctor?” “What is so great and exclusive about Manhattan Hospital where the doctors come down for a price and lie to you for a lawyer for a Housing Authority for a price, a price they wouldn’t tell you.” Combining charges of peijury and subornation of peijury with racial overtones, he said, “He brought in that poor black man. They put him up to coming here. They used him.” “He didn’t do it from pressure like that poor black man did, didn’t do it for that. He did it for money.” Adding to these the statements of his personal knowledge of the facts and his personal opinion as to the justness of his cause and the credibility of witnesses, in violation of DR 7-106(C) (3), (4) of the Code of Professional Responsibility, he said, “I forgive the black man, the person, I forgave him, but I cannot forgive Dr. Lisman, Emeritus for coming in and lying to you, and you know how I knew it? I smelled it because I said to him name one.” Referring to a valid and required assertion of physician-patient privilege, he said, “[W]hen this lawyer yelled privilege, I knew that was a lie”. Referring to a former drug addict witness for plaintiffs, he said, “I would invite him to my home for dinner. I see nothing wrong with him.” Also: “I am familiar with Dr. Budabin and his reputation as an eminent neurologist”. “[H]old your hats because I have a figure. I know what these cases are worth.” In Cohen v Covelli (276 App Div 375, 376), this court said: “A wide latitude is allowed to counsel in his summation and we have no desire to curb a vigorous, robust summation. A witness may be characterized as untruthful, as a falsifier, as a liar, and even as a peijurer. That is a matter of propriety, of good taste and of judgment, with which a court will not interfere. But there is some line to be drawn. Where, therefore, a lawyer, in his summation, charges that a witness testifying to material facts in a case has been ‘bought’ by the other side, when there is no basis in the evidence for any such charge, that statement is so highly objectionable and prejudicial as to require a new trial in a case involving sharply contested issues, particularly when the objectionable statement complained of was allowed to stand without prompt judicial rebuke.” In this and in the other respects noted, the summation for plaintiffs in the present case went far beyond the permissible line. We do not agree with our dissenting brother that there were adequate and effective curative instructions or admonitions by the court. We are unable to say that this inflammatory improper summation did not influence the jury’s verdict. Accordingly, we cannot let the verdict stand, and we order a new trial. Concur — Lupiano, Silverman and Bloom, JJ.

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Bluebook (online)

86 A.D.2d 580, 446 N.Y.S.2d 318, 1982 N.Y. App. Div. LEXIS 15106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caraballo-v-city-of-new-york-nyappdiv-1982.

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