Rodriguez v. City of New York

92 A.D.2d 813, 460 N.Y.S.2d 306, 1983 N.Y. App. Div. LEXIS 17196

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1983
• Status: Published

Opinions

— Judgment, Supreme Court, Bronx County (Silbowitz, J.), entered on July 23, 1981, is modified, on the law and the facts, and a new trial ordered on the issue of damages only, without costs and without disbursements, unless plaintiff, within 20 days after service upon her of a copy of the order herein, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to reduce only the verdict on the wrongful death cause of action to $350,000 and to the entry of an amended judgment in accordance therewith, and said judgment is otherwise affirmed. If plaintiff so stipulates, the judgment, as so amended and reduced, is affirmed, without costs and without disbursements. The dissent finds great significance in an oral motion the city allegedly made in Special Term prior to trial, urging the defense of collateral estoppel. There is no record of this motion having been made (or of Justice Fusco’s denial of it) but even assuming the fact, the puzzle is more, why did not the city formally move to amend its answer? CPLR 3018 (subd [b]) is quite explicit in requiring the defense of collateral estoppel to be affirmatively pleaded, and CPLR 3211 (subd [e]) provides that a failure to include the defense (either originally or by amendment) constitutes a waiver. (Cf. Mayers v D’Agostino, 58 NY2d 696.) Instead, the city orally renewed the motion at trial, albeit prior to opening statements, but without written documentation and legal memorandum in support. Justice Silbowitz even reserved decision until the conclusion of trial, thus giving appellant ample time to make a record and, perhaps, preserve the defense. While the facts in Mayers v D’Agostino (supra), are different — there defendants did not raise the collateral estoppel issue until the third day of trial — we believe the principle of that case to be just as applicable to the facts in this case. The city declined the opportunity to participate in the trial of damages in the Ryan suit, possibly a strategy decision to keep that first jury from considering the city as a “deep pocket”. Whatever the motive, it is clear that the city had notice sufficient to enable it to prepare the necessary written motion papers and make a record. The dissent’s statement, that the Ryan jury “had been instructed to determine the full measure of damages sustained by plaintiff”, is also in dispute. The record from that prior trial shows, rather, that the jury was asked to assess only the damages inflicted by Ryan and was not given the broader charge that they should determine the full measure of damages sustained. Thus, it is not at all clear that the city could have proven the collateral estoppel defense. What does seem clear is the city’s failure to observe the most basic rules of practice in asserting the defense. Accordingly, we find that the issue has been waived. After review of the record, the damages appear to us to be excessive to the extent indicated. Concur — Kupferman, J. P., Carro, Milonas and Alexander, JJ.