Chappotin v. City of New York

90 A.D.3d 425, 933 N.Y.2d 856

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2011
• Status: Published

Opinions

Trial counsel is afforded wide latitude in presenting arguments to a jury in summation (see Califano v City of New York, 212 AD2d 146, 154-155 [1995]). Where defense counsel remains within the broad bounds of rhetorical comment in pointing out the insufficiency and contradictory nature of a plaintiffs proof, such remarks do not deprive the plaintiff of a fair trial (McDonald v City of New York, 172 AD2d 296, 297 [1991], lv denied 78 NY2d 861 [1991]). Defense counsel came close to overstepping that line when he argued, inter alia, referring to plaintiff, that “this is a man who has played the system going on 15 years,” noting that he had been on disability since 1995; that “[h]ere’s someone who doesn’t have a concern about getting medical care. He doesn’t have a concern about working.”

However, plaintiff failed to object to 13 of the 15 comments of which he now complains. The court sustained the two objections that were actually made by plaintiff. Furthermore, the court gave a curative instruction. Plaintiff failed to preserve his objections and the verdict should be reinstated (see Penn v Amchem Prods., 73 AD3d 493 [2010]; Wilson v City of New York, 65 AD3d 906 [2009]; Bennett v Wolf, 40 AD3d 274 [2007], lv denied 9 NY3d 818 [2008]; Smith v Au, 8 AD3d 1 [2004]). Concur — Andrias, J.E, Saxe, Catterson and Abdus-Salaam, JJ.