Lowell v. Manhattan & Bronx Surface Transit Operating Authority

234 A.D.2d 151, 651 N.Y.S.2d 303, 1996 N.Y. App. Div. LEXIS 12530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about March 21,1995, which set aside a verdict apportioning liability equally between the parties and awarding damages, and directed a new trial on liability and damages, unanimously affirmed, without costs.

Upon review of the record, we are persuaded that the egregious misconduct of defense counsel precluded the jury from considering closely contested issues " 'in the calm and untrammelled spirit necessary to effect justice’ ” (Schaffer v Kurpis, 177 AD2d 379, 380, quoting Kamen Soap Prods. Co. v Prusansky & Prusansky, 11 AD2d 676), and otherwise deprived plaintiff of a fair trial. Concur—Rosenberger, J. P., Ellerin, Rubin and Tom, JJ.