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FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958
NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
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TRACEY LEE and JEREMIAH LEE
Plaintiff(s), Index No. 2018-50958
-against- AFFIRMATION
IN OPPOSITION
IAN DOUGLAS TROGE and DANIEL TROGE
Defendant(s).
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Kenneth B. Goldblatt, Esq., an attorney duly licensed to practice law in the State of New
York, does hereby affirm under the penalty of perjury the following:
1. I am affiliated with Goldblatt & Associates, P.C., attorneys for plaintiffs herein, and
am fully familiar with the facts and circumstances of this action, the source of this knowledge being
the file maintained by my office in the course of this litigation.
2. I submit this affirmation in opposition to defendants’ motion for leave to renew
and/or reargue this Court’s April 24, 2023 decision and order granting plaintiffs’ motion pursuant to
CPLR §4404(a) setting aside the jury’s verdict in the interest of justice. Defendants’ application
must be denied. The Court did not misinterpret the law. Rather, the Court is given wide discretion
to set aside a verdict in the interest of justice in instances where, as here, in summation, one attorney
personally attacks another accusing him of fraud, suborning perjury and being in cahoots with
medical providers to manufacture false diagnoses. Defendants’ application for renewal must also be
denied as they have not provided an explanation as to why the new testimonial “evidence” was not
initially submitted in opposition to plaintiffs’ application.
3. In plaintiffs’ application for a new trial, it was highlighted that the sole focus of
defense counsel’s summation was accusing me of having committed fraud, both against the
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insurance companies and upon the Court, by allegedly referring plaintiff to numerous doctors with
the intention of coordinating her medical care and manipulating those doctors into making false
diagnoses. Defense counsel also accused Dr. Lipton of manufacturing false MRI results, presumably
at my request, and accused me of suborning perjury, including that of plaintiff Tracey Lee, who
according to counsel, put on a show “worthy of an Academy Award”. Perhaps most egregious, if not
reprehensible, is that it was conclusively demonstrated that counsel made these comments with full
knowledge that they were false, meaning counsel intentionally lied to the jury.1 It was further argued
that counsel’s comments were so inflammatory that despite a curative instruction from the Court, the
damage had been done, thus depriving plaintiffs of a fair trial.
4. In opposition, counsel neither denied making the comments, as he could not, nor that
they were intentionally made with the knowledge that they were false, as he also could not. Rather,
counsel defended his shameful conduct by arguing that since I did not object during his summation, I
somehow accepted his comments as “fair argument”. I did not and they were not, and by granting
plaintiffs’ application, the Court agreed.
5. Defendants now claim that the Court misapplied the law, arguing that the Court did
not have the authority to grant plaintiffs’ application, on the grounds that I waived plaintiffs’ right to
move to set aside the verdict because I did not move for a mistrial prior to the verdict (Fitzpatrick
Affirmation, ¶ 9). Defendants are wrong.
6. To begin with, while I did not move for a mistrial, I did object and seek a curative
instruction. Notwithstanding the same, despite the fact that plaintiffs neither objected during
1
The same way counsel intentionally lied to the Court during a discussion in chambers about his
supposed lack of knowledge regarding his client’s surgery after the subject crash.
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defendants’ summation nor moved for a mistrial, there is a body of case law holding that pursuant to
CPLR §4404(a) it is still within the Court’s discretion to set aside a verdict and order a new trial in
the interest of justice when, as acknowledged by defense counsel in opposition to plaintiffs’ initial
motion, counsel’s misconduct constituted a “fundamental error or gross injustice” (Fitzpatrick
Affirmation, Exhibit A, p. 5). See, Oates v. NY City Transit Authority, 138 A.D.3d 470 (1st Dept.
2016) aff’d 28 N.Y.3d 1046; Boyd v. Manhattan and Bronx Service Transit Operating Authority, 79
A.D.3d 412 (1st Dept. 2010). The Court found that counsel’s comments were “reprehensible” so
much so that they constituted a gross injustice and deprived plaintiffs of a fair trial (Fitzpatrick
Affirmation, Exhibit A, p. 6).
7. Before addressing the substantive law, it must be highlighted that the central theme
of defendants’ moving papers is that counsel’s comments during summation, including his personal
attacks against me and his intentionally lying to the jury, were somehow proper and fair argument.
Nowhere in counsel’s affirmation is there even the slightest recognition, from either a professional or
substantive perspective, of how grossly inappropriate his comments were, let alone any indication of
regret. Rather, he still argues that as long as I did not object, he was free to say whatever he wanted,
even if he knew his comments were blatantly false. Wrong!!! Summations are supposed to be about
the evidence in the case, not personal attacks. During summation, counsel broke, if not eviscerated,
the long acknowledged (at least by most attorneys) cardinal rule: Counsel should never make the
case about the other attorney, and when they do, like this Court, the appellate courts grant new trials
in the interest of justice.
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THE COURT NEITHER MISINTERPRETED THE LAW
NOR ABUSED ITS DISCRETION IN SETTING ASIDE
THE JURY’S VERDICT AND ORDERING A NEW TRIAL
8. As a matter of law, all litigants are entitled to a fair trial free from improper
comments by counsel. Nieves v. Clove Lakes Health Care & Rehabilitation Inc., 179 A.D.3d. 938
(2nd Dept. 2020). Where an attorney engages in misconduct that so compromises a party’s right to a
fair trial, CPLR §4404(a) authorizes the court, either by motion of any party, or on its own
initiative, to grant a new trial in the interest of justice. This power conferred upon a trial court
is discretionary in nature and the trial judge must decide whether substantial justice has been
done and whether it is likely that the verdict was affected by an attorney’s misconduct. In doing
so, the judge must look to her/his own common sense, experience and sense of fairness rather
than to precedents. Micallef v. Miehle Company, Division of Miehle-Goss Dexter, Inc., 39
N.Y.2d 376 (1976). More importantly, the lower court’s exercise of discretion should not be
reversed absent clear evidence of an abuse or improper exercise of its discretion. Smith v.
Rudolph, 151 A.D.3d 58 (1st Dept. 2017).
9. Where, like our matter, a motion for a mistrial was not made, an appellate court’s
review of the lower court’s exercise of discretion is limited. Register v. SAS Morrison LLC, 189
A.D.3d 591 (1st Dept. 2020). This is predicated on the assumption that the judge who presided
over the trial is in the best position to evaluate errors therein (Smith v. Rudolph, supra) and the
appellate court’s power to review the trial justice’s discretion must be exercised in the light of
the fact that “she/he was there and we were not”. Trap v. American Trading & Production Corp.,
66 A.D.2d 515 (1st Dept. 1979). In this regard, the trial court must decide, based on common
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sense, experience and sense of fairness, whether it is likely that the verdict had been affected by
the alleged misconduct (Smith v. Rudolph, supra).
10. When, like defense counsel in this matter, an attorney intentionally spews
falsehoods, makes personal attacks against opposing counsel and accuses doctors and other
witnesses of lying, those comments cannot be protected by alleged restrictive interpretations of
the power of the court. Id. Rather, under those circumstances, the interest of justice requires a
court to order a new trial. Nieves v. Clove Lakes Health Care & Rehabilitation Inc., supra. Even
where an attorney affords common courtesy to an adversary to argue his case to a jury and does not
object to improper comments nor move for a mistrial, where a request for a curative instruction is
made and/or when the remarks are so inflammatory and prejudicial as to deprive a party of a fair
trial, the court may exercise its discretion and order a new trial. See, Kleiber v. Fichtel, 172 A.D.3d
1048 (2nd Dept. 2021); Nieves v. Clove Lakes Health Care & Rehabilitation Inc., supra.
11. Examples of jury verdicts being set aside in the interests of justice include where
during cross-examination and/or summation, counsel accuses witness of lying (Smith v. Rudolph,
supra; Rodriguez v. City of New York, 67 A.D.3d 884 (2nd Dept. 2009); Ortiz v. Jaramillo, 84
A.D.3d 766 (2nd Dept. 2011)), personally attacks opposing counsel and accuses them of suborning
perjury (Brooks v. Judlau Construction Inc., 39 A.D.3d 447 (2nd Dept. 2007); Weinberger v. New
York, 97 A.D.2d 819 (2nd Dept. 1983); Caraballo v. New York, 86 A.D.2d 580 (1st Dept. 1982)) and
intentionally lies to a jury (Heller v. Louis Provenzano, 257 A.D.2d 378 (1st Dept. 1999)). Sound
familiar? It should, because defense counsel in this matter engaged in all of the above.
12. In Smith, where defendant contested both liability and damages, after finding
defendant liable, like the instant matter, during summation counsel denigrated plaintiff’s expert
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doctors and falsely accused them of lying. After a jury found that plaintiff had met the threshold
under two categories, a “significant limitation” and “90/180-days”, but not a “permanent
consequential limitation”, it awarded plaintiff $100,000 for past pain and suffering, $75,000 for
past lost earnings, and $150,000 for past medical expenses, but zero dollars for future pain and
suffering, future lost earnings, and future medical expenses. Afterward, plaintiff moved for an
additur on damages. Alternatively, she sought a new trial on the ground that “defense counsel
engaged in repeated misconduct in front of the jury, thereby depriving plaintiff of a fair trial”
and that the verdict was against the weight of the evidence.
13. The trial court granted plaintiff’s motion for a new trial based on defense
counsel’s improper comments during summation, holding that counsel’s conduct was “so
extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness
of the trial”. It also highlighted that the case did not present a situation where there was
overwhelming evidence in favor of defendants and where an isolated comment could be deemed
harmless.
14. In affirming the lower court, the First Department noted that the lower court
properly entertained plaintiff’s motion even though she had not moved for a mistrial before the
verdict. With respect to defense counsel’s conduct, the court highlighted the most egregious
examples as the denigration of Dr. Davy and Dr. Guy; counsel’s unsupported assertions that
doctors provided unnecessary treatment as part of a money-making conspiracy; and counsel’s
assertion of his personal view that plaintiff was pursuing the lawsuit only because she wanted to
“take the rest of her life off.” Like the trial court, it too was convinced that defense counsel’s
denigration of plaintiff’s witnesses and unsupported inflammatory comments “appear to have
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been calculated to influence the jury by considerations which were not legitimately before them,
and cannot be dismissed as inadvertent, thoughtless or harmless.”
15. Significantly, the court compared defense counsel’s conduct to that of counsel in
Maraviglia v. Lokshina, 92 A.D.3d 924 (2nd Dept. 2012), which this Court cited. In Maraviglia,
during summation, defense counsel “repeatedly denigrated the medical background of the . . .
plaintiff’s treating physician”; “made inflammatory remarks, including commenting during
summation that the plaintiff’s treating physician and the plaintiff were ‘working the system’”;
and improperly remarked that the plaintiff’s treating physician “was the ‘go-to’ doctor in Suffolk
County for patients who wished to stop working.” The Second Department affirmed the lower
court’s setting aside the verdict in the interest of justice.
16. Similarly, in Rodriguez, defense counsel referred to the testimony of plaintiff’s
vocational economic analyst as “totally incredible” and a “kind of tweaker.” Additionally, during the
course of summarizing the testimony of an economic analyst retained by the plaintiffs, defense
counsel exclaimed, “what a liar”. During summation defense counsel rhetorically asked a jury “why
do they lie to you?” when telling the jury that the case was about fair and adequate compensation for
the injuries Rodriguez sustained in the accident. Defense counsel went on to state: “It’s not a
lottery. It’s not a game. It’s not ‘here’s the American dream, come over here, fall off a scaffold, get
a million dollars.’” Finally, defense counsel also told the jury that, from the beginning of his
testimony, Rodriguez’s treating chiropractor was “not being honest, is not being truthful.”
17. After the lower court denied plaintiff’s motion to set aside the verdict pursuant to
CPLR 4404(a), the Second Department reversed, holding that defense counsel’s comments were
not isolated and were plainly prejudicial and designed to deprive the plaintiff of a fair trial.
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18. In Brooks, the court awarded plaintiff a new trial after it found that defense
counsel’s repeatedly commenting upon the ethics and veracity of the plaintiffs’ witnesses and
their counsel were deliberate efforts to divert the jury’s attention from the issues and so
inflammatory and prejudicial so as to contaminate the proceedings to deny plaintiff of a fair trial.
19. In Weinberger, the court granted plaintiff a new trial based upon the numerous
comments of defense counsel where he interjected his own statements and personal observations
into the proceedings, told the jury that it was his responsibility to protect them from getting
ripped off by the plaintiff, and repeatedly attacked plaintiff’s counsel, accusing him of building a
case while implicitly accusing him of suborning perjury. The court held that it could not rule out
the strong possibility that these comments influenced the verdict. Lest defendants forget, this is
exactly what defense counsel told the jury in this matter when during summation he referenced
the man behind the curtain who orchestrated medical care, worked the levers of deception and
greased the lawsuit machine.
20. Courts also award new trials in the interest of justice when plaintiffs’ counsel
crosses the line of fair argument. In Caraballo, during summation, plaintiff’s counsel referred to
defense counsel as a “tricky lawyer”, “deceptive” and commented “that is really what is
happening here”. Sound familiar? Counsel also referred to a defense expert as having been
bought by the defense. After a verdict in plaintiff’s favor, the First Department ordered a new
trial because of the claimant’s attorney’s grossly improper and inflammatory summation, which
had as its continuing theme a personal attack on the housing authority’s attorney, unsubstantiated
charges of perjury and subornation of perjury, racial overtones, and assertions and opinion as to
the case and the witnesses’ credibility.
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21. While acknowledging that an attorney has wide latitude in a summation, the court
held that where a lawyer, in his summation, charged that a witness testifying to material facts in
a case had been “bought by the other side,” when there was no basis in the evidence for any such
charge, that statement was so highly objectionable and prejudicial as to require a new trial. The
claimant’s summation went far beyond the permissible line, and the court could not say that the
inflammatory summation did not influence the jury’s verdict. Of note, the court also referenced
that the attorney’s conduct was in violation of N.Y. Jud. App., Code Prof. Resp. DR 7-106(C)(3),
(4).
22. Knowingly lying to a jury is also grounds for a court ordering a new trial. In
Heller, the First Department ordered a new trial because during summation, plaintiff’s counsel
insinuated that defendant’s expert had been thrown out of NYU Medical Center. Not only was
that not true, counsel knew there was no factual basis to make the statement. Counsel also
referred to the defense expert as “three minute Irving”. The First Department found that those
comments alone led to the court ordering a new trial even in the absence of a motion for a
mistrial. In this matter, defense counsel knowingly lied to the jury by accusing me of
orchestrating medical care.
23. Similarly, in Huff v. Rodriguez, 64 A.D.3d 1221 (4th Dept. 2009), one day before
opening statements, defendants’ attorney acknowledged that he had received a report of plaintiff’s
accident reconstruction expert concluding “that the sole proximate cause of the accident was the …
action of [defendant].” Plaintiff did not call her expert at trial and, during his summation,
defendants’ attorney blatantly lied when he told a jury that plaintiff failed to call that expert “because
his testimony would not support plaintiff’s claim that defendant caused the accident.” On plaintiff’s
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motion, the court found that that statement alone warranted a new trial as it could not conclude that
the comment did not influence the jury’s verdict. Compare this to counsel lying to the jury when he
told them I coordinated medical care and manipulated medical diagnoses when he knew that, in the
timeframe referred to in his defamatory statements, my firm had not even yet been retained by
plaintiffs.
24. In Nelson v. Bogopa Service Corp., 123 A.D.3d 780 (2nd Dept. 2014), a triage nurse
for defendant was precluded from testifying. During summation, plaintiff’s counsel knowingly and
intentionally lied to a jury about the reason defendant did not call the nurse to testify. The court held
that counsel’s comments in summation were not supported by the evidence, were inflammatory
and unduly prejudicial, depriving the defendants of a fair trial.
25. In Valenti v. Gadomski, 203 A.D.3d 783 (2nd Dept. 2022) after the lower court
denied a motion for a new trial, the Second Department reversed and ordered a new trial after
defense counsel made multiple improper and inflammatory comments about the relationship
between counsel for the plaintiff and the plaintiff’s expert pathologist during the cross-
examination of that expert and during his summation to the jury. Similar comments were made
by counsel in this matter when he commented upon a supposed relationship between me and Dr.
Lipton. Specifically, counsel alleged that I was behind plaintiff going for an MRI at Montefiore
because “they knew what the ultimate result was going to be with Lipton. It was going to be a
brain injury.” (Exhibit 28, p. 20)
26. In Ortiz v. Jaramillo, 84 A.D.3d 766 (2nd Dept. 2011), the Second Department
affirmed the lower court’s setting aside a verdict and granting a motion for a new trial due to
comments made by plaintiffs’ counsel, including his repeated denigration of the veracity of defense
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witnesses and his vouching for the plaintiffs’ witnesses. The court also noted that those comments
were not isolated, characterized them as inflammatory and so unduly prejudicial as to have tainted
the proceedings and deprived defendant of a fair trial.
27. In McArdle v. Hurley, 51 A.D.3d 741 (2nd Dept. 2008), defense counsel’s use of the
plaintiff’s husband’s disability retirement as evidence that her entire family was seeking to “max out
in the civil justice system,” was enough for a court to grant a new trial on the grounds that that one
comment so contaminated the proceedings as to deprive the plaintiff of a fair trial.
28. In our case, it is undisputed that during summation, defense counsel argued to the
jury that plaintiff, her treating doctors, expert witnesses and her lawyer were all intentionally
dishonest, collaborating in a conspiracy. Specifically, defense counsel accused me of, among other
thigs, orchestrating plaintiff’s medical care, convincing doctors to render a false diagnosis of brain
injury and otherwise suborning perjury. He accused Dr. Lipton of fabricating the results of an MRI.
More importantly, like counsel in Huff and Nelson, many of counsel’s accusations were made with
the knowledge that they were false. In both matters, blatant lies to the jury about significant issues
were enough to warrant a new trial. They likewise warranted a new trial in this matter.
WHEREFORE, plaintiffs respectfully request that defendants’ motion be denied in its
entirety and for such other and further relief as this Court may deem just and proper.
Dated: Mohegan Lake, New York
June 7, 2023
_______________________________
Kenneth B. Goldblatt, Esq.
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CERTIFICATION OF LENGTH OF PAPERS
The undersigned, Kenneth B. Goldblatt, Esq., hereby certifies, pursuant to Uniform Civil Rule 202.8-
b, that this Affirmation is in compliance with the applicable word count limit. The total word count
for this document is 3,239.
Dated: Mohegan Lake, New York
June 7, 2023
______________________________
Kenneth B. Goldblatt, Esq.
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Preview
FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ---------------------------------------------------------------------X TRACEY LEE and JEREMIAH LEE Plaintiff(s), Index No. 2018-50958 -against- AFFIRMATION IN OPPOSITION IAN DOUGLAS TROGE and DANIEL TROGE Defendant(s). -------------------------------------------------------------------X Kenneth B. Goldblatt, Esq., an attorney duly licensed to practice law in the State of New York, does hereby affirm under the penalty of perjury the following: 1. I am affiliated with Goldblatt & Associates, P.C., attorneys for plaintiffs herein, and am fully familiar with the facts and circumstances of this action, the source of this knowledge being the file maintained by my office in the course of this litigation. 2. I submit this affirmation in opposition to defendants’ motion for leave to renew and/or reargue this Court’s April 24, 2023 decision and order granting plaintiffs’ motion pursuant to CPLR §4404(a) setting aside the jury’s verdict in the interest of justice. Defendants’ application must be denied. The Court did not misinterpret the law. Rather, the Court is given wide discretion to set aside a verdict in the interest of justice in instances where, as here, in summation, one attorney personally attacks another accusing him of fraud, suborning perjury and being in cahoots with medical providers to manufacture false diagnoses. Defendants’ application for renewal must also be denied as they have not provided an explanation as to why the new testimonial “evidence” was not initially submitted in opposition to plaintiffs’ application. 3. In plaintiffs’ application for a new trial, it was highlighted that the sole focus of defense counsel’s summation was accusing me of having committed fraud, both against the 1 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 insurance companies and upon the Court, by allegedly referring plaintiff to numerous doctors with the intention of coordinating her medical care and manipulating those doctors into making false diagnoses. Defense counsel also accused Dr. Lipton of manufacturing false MRI results, presumably at my request, and accused me of suborning perjury, including that of plaintiff Tracey Lee, who according to counsel, put on a show “worthy of an Academy Award”. Perhaps most egregious, if not reprehensible, is that it was conclusively demonstrated that counsel made these comments with full knowledge that they were false, meaning counsel intentionally lied to the jury.1 It was further argued that counsel’s comments were so inflammatory that despite a curative instruction from the Court, the damage had been done, thus depriving plaintiffs of a fair trial. 4. In opposition, counsel neither denied making the comments, as he could not, nor that they were intentionally made with the knowledge that they were false, as he also could not. Rather, counsel defended his shameful conduct by arguing that since I did not object during his summation, I somehow accepted his comments as “fair argument”. I did not and they were not, and by granting plaintiffs’ application, the Court agreed. 5. Defendants now claim that the Court misapplied the law, arguing that the Court did not have the authority to grant plaintiffs’ application, on the grounds that I waived plaintiffs’ right to move to set aside the verdict because I did not move for a mistrial prior to the verdict (Fitzpatrick Affirmation, ¶ 9). Defendants are wrong. 6. To begin with, while I did not move for a mistrial, I did object and seek a curative instruction. Notwithstanding the same, despite the fact that plaintiffs neither objected during 1 The same way counsel intentionally lied to the Court during a discussion in chambers about his supposed lack of knowledge regarding his client’s surgery after the subject crash. 2 2 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 defendants’ summation nor moved for a mistrial, there is a body of case law holding that pursuant to CPLR §4404(a) it is still within the Court’s discretion to set aside a verdict and order a new trial in the interest of justice when, as acknowledged by defense counsel in opposition to plaintiffs’ initial motion, counsel’s misconduct constituted a “fundamental error or gross injustice” (Fitzpatrick Affirmation, Exhibit A, p. 5). See, Oates v. NY City Transit Authority, 138 A.D.3d 470 (1st Dept. 2016) aff’d 28 N.Y.3d 1046; Boyd v. Manhattan and Bronx Service Transit Operating Authority, 79 A.D.3d 412 (1st Dept. 2010). The Court found that counsel’s comments were “reprehensible” so much so that they constituted a gross injustice and deprived plaintiffs of a fair trial (Fitzpatrick Affirmation, Exhibit A, p. 6). 7. Before addressing the substantive law, it must be highlighted that the central theme of defendants’ moving papers is that counsel’s comments during summation, including his personal attacks against me and his intentionally lying to the jury, were somehow proper and fair argument. Nowhere in counsel’s affirmation is there even the slightest recognition, from either a professional or substantive perspective, of how grossly inappropriate his comments were, let alone any indication of regret. Rather, he still argues that as long as I did not object, he was free to say whatever he wanted, even if he knew his comments were blatantly false. Wrong!!! Summations are supposed to be about the evidence in the case, not personal attacks. During summation, counsel broke, if not eviscerated, the long acknowledged (at least by most attorneys) cardinal rule: Counsel should never make the case about the other attorney, and when they do, like this Court, the appellate courts grant new trials in the interest of justice. 3 3 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 THE COURT NEITHER MISINTERPRETED THE LAW NOR ABUSED ITS DISCRETION IN SETTING ASIDE THE JURY’S VERDICT AND ORDERING A NEW TRIAL 8. As a matter of law, all litigants are entitled to a fair trial free from improper comments by counsel. Nieves v. Clove Lakes Health Care & Rehabilitation Inc., 179 A.D.3d. 938 (2nd Dept. 2020). Where an attorney engages in misconduct that so compromises a party’s right to a fair trial, CPLR §4404(a) authorizes the court, either by motion of any party, or on its own initiative, to grant a new trial in the interest of justice. This power conferred upon a trial court is discretionary in nature and the trial judge must decide whether substantial justice has been done and whether it is likely that the verdict was affected by an attorney’s misconduct. In doing so, the judge must look to her/his own common sense, experience and sense of fairness rather than to precedents. Micallef v. Miehle Company, Division of Miehle-Goss Dexter, Inc., 39 N.Y.2d 376 (1976). More importantly, the lower court’s exercise of discretion should not be reversed absent clear evidence of an abuse or improper exercise of its discretion. Smith v. Rudolph, 151 A.D.3d 58 (1st Dept. 2017). 9. Where, like our matter, a motion for a mistrial was not made, an appellate court’s review of the lower court’s exercise of discretion is limited. Register v. SAS Morrison LLC, 189 A.D.3d 591 (1st Dept. 2020). This is predicated on the assumption that the judge who presided over the trial is in the best position to evaluate errors therein (Smith v. Rudolph, supra) and the appellate court’s power to review the trial justice’s discretion must be exercised in the light of the fact that “she/he was there and we were not”. Trap v. American Trading & Production Corp., 66 A.D.2d 515 (1st Dept. 1979). In this regard, the trial court must decide, based on common 4 4 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 sense, experience and sense of fairness, whether it is likely that the verdict had been affected by the alleged misconduct (Smith v. Rudolph, supra). 10. When, like defense counsel in this matter, an attorney intentionally spews falsehoods, makes personal attacks against opposing counsel and accuses doctors and other witnesses of lying, those comments cannot be protected by alleged restrictive interpretations of the power of the court. Id. Rather, under those circumstances, the interest of justice requires a court to order a new trial. Nieves v. Clove Lakes Health Care & Rehabilitation Inc., supra. Even where an attorney affords common courtesy to an adversary to argue his case to a jury and does not object to improper comments nor move for a mistrial, where a request for a curative instruction is made and/or when the remarks are so inflammatory and prejudicial as to deprive a party of a fair trial, the court may exercise its discretion and order a new trial. See, Kleiber v. Fichtel, 172 A.D.3d 1048 (2nd Dept. 2021); Nieves v. Clove Lakes Health Care & Rehabilitation Inc., supra. 11. Examples of jury verdicts being set aside in the interests of justice include where during cross-examination and/or summation, counsel accuses witness of lying (Smith v. Rudolph, supra; Rodriguez v. City of New York, 67 A.D.3d 884 (2nd Dept. 2009); Ortiz v. Jaramillo, 84 A.D.3d 766 (2nd Dept. 2011)), personally attacks opposing counsel and accuses them of suborning perjury (Brooks v. Judlau Construction Inc., 39 A.D.3d 447 (2nd Dept. 2007); Weinberger v. New York, 97 A.D.2d 819 (2nd Dept. 1983); Caraballo v. New York, 86 A.D.2d 580 (1st Dept. 1982)) and intentionally lies to a jury (Heller v. Louis Provenzano, 257 A.D.2d 378 (1st Dept. 1999)). Sound familiar? It should, because defense counsel in this matter engaged in all of the above. 12. In Smith, where defendant contested both liability and damages, after finding defendant liable, like the instant matter, during summation counsel denigrated plaintiff’s expert 5 5 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 doctors and falsely accused them of lying. After a jury found that plaintiff had met the threshold under two categories, a “significant limitation” and “90/180-days”, but not a “permanent consequential limitation”, it awarded plaintiff $100,000 for past pain and suffering, $75,000 for past lost earnings, and $150,000 for past medical expenses, but zero dollars for future pain and suffering, future lost earnings, and future medical expenses. Afterward, plaintiff moved for an additur on damages. Alternatively, she sought a new trial on the ground that “defense counsel engaged in repeated misconduct in front of the jury, thereby depriving plaintiff of a fair trial” and that the verdict was against the weight of the evidence. 13. The trial court granted plaintiff’s motion for a new trial based on defense counsel’s improper comments during summation, holding that counsel’s conduct was “so extreme and pervasive as to make it inconceivable that it did not substantially affect the fairness of the trial”. It also highlighted that the case did not present a situation where there was overwhelming evidence in favor of defendants and where an isolated comment could be deemed harmless. 14. In affirming the lower court, the First Department noted that the lower court properly entertained plaintiff’s motion even though she had not moved for a mistrial before the verdict. With respect to defense counsel’s conduct, the court highlighted the most egregious examples as the denigration of Dr. Davy and Dr. Guy; counsel’s unsupported assertions that doctors provided unnecessary treatment as part of a money-making conspiracy; and counsel’s assertion of his personal view that plaintiff was pursuing the lawsuit only because she wanted to “take the rest of her life off.” Like the trial court, it too was convinced that defense counsel’s denigration of plaintiff’s witnesses and unsupported inflammatory comments “appear to have 6 6 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 been calculated to influence the jury by considerations which were not legitimately before them, and cannot be dismissed as inadvertent, thoughtless or harmless.” 15. Significantly, the court compared defense counsel’s conduct to that of counsel in Maraviglia v. Lokshina, 92 A.D.3d 924 (2nd Dept. 2012), which this Court cited. In Maraviglia, during summation, defense counsel “repeatedly denigrated the medical background of the . . . plaintiff’s treating physician”; “made inflammatory remarks, including commenting during summation that the plaintiff’s treating physician and the plaintiff were ‘working the system’”; and improperly remarked that the plaintiff’s treating physician “was the ‘go-to’ doctor in Suffolk County for patients who wished to stop working.” The Second Department affirmed the lower court’s setting aside the verdict in the interest of justice. 16. Similarly, in Rodriguez, defense counsel referred to the testimony of plaintiff’s vocational economic analyst as “totally incredible” and a “kind of tweaker.” Additionally, during the course of summarizing the testimony of an economic analyst retained by the plaintiffs, defense counsel exclaimed, “what a liar”. During summation defense counsel rhetorically asked a jury “why do they lie to you?” when telling the jury that the case was about fair and adequate compensation for the injuries Rodriguez sustained in the accident. Defense counsel went on to state: “It’s not a lottery. It’s not a game. It’s not ‘here’s the American dream, come over here, fall off a scaffold, get a million dollars.’” Finally, defense counsel also told the jury that, from the beginning of his testimony, Rodriguez’s treating chiropractor was “not being honest, is not being truthful.” 17. After the lower court denied plaintiff’s motion to set aside the verdict pursuant to CPLR 4404(a), the Second Department reversed, holding that defense counsel’s comments were not isolated and were plainly prejudicial and designed to deprive the plaintiff of a fair trial. 7 7 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 18. In Brooks, the court awarded plaintiff a new trial after it found that defense counsel’s repeatedly commenting upon the ethics and veracity of the plaintiffs’ witnesses and their counsel were deliberate efforts to divert the jury’s attention from the issues and so inflammatory and prejudicial so as to contaminate the proceedings to deny plaintiff of a fair trial. 19. In Weinberger, the court granted plaintiff a new trial based upon the numerous comments of defense counsel where he interjected his own statements and personal observations into the proceedings, told the jury that it was his responsibility to protect them from getting ripped off by the plaintiff, and repeatedly attacked plaintiff’s counsel, accusing him of building a case while implicitly accusing him of suborning perjury. The court held that it could not rule out the strong possibility that these comments influenced the verdict. Lest defendants forget, this is exactly what defense counsel told the jury in this matter when during summation he referenced the man behind the curtain who orchestrated medical care, worked the levers of deception and greased the lawsuit machine. 20. Courts also award new trials in the interest of justice when plaintiffs’ counsel crosses the line of fair argument. In Caraballo, during summation, plaintiff’s counsel referred to defense counsel as a “tricky lawyer”, “deceptive” and commented “that is really what is happening here”. Sound familiar? Counsel also referred to a defense expert as having been bought by the defense. After a verdict in plaintiff’s favor, the First Department ordered a new trial because of the claimant’s attorney’s grossly improper and inflammatory summation, which had as its continuing theme a personal attack on the housing authority’s attorney, unsubstantiated charges of perjury and subornation of perjury, racial overtones, and assertions and opinion as to the case and the witnesses’ credibility. 8 8 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 21. While acknowledging that an attorney has wide latitude in a summation, the court held that where a lawyer, in his summation, charged that a witness testifying to material facts in a case had been “bought by the other side,” when there was no basis in the evidence for any such charge, that statement was so highly objectionable and prejudicial as to require a new trial. The claimant’s summation went far beyond the permissible line, and the court could not say that the inflammatory summation did not influence the jury’s verdict. Of note, the court also referenced that the attorney’s conduct was in violation of N.Y. Jud. App., Code Prof. Resp. DR 7-106(C)(3), (4). 22. Knowingly lying to a jury is also grounds for a court ordering a new trial. In Heller, the First Department ordered a new trial because during summation, plaintiff’s counsel insinuated that defendant’s expert had been thrown out of NYU Medical Center. Not only was that not true, counsel knew there was no factual basis to make the statement. Counsel also referred to the defense expert as “three minute Irving”. The First Department found that those comments alone led to the court ordering a new trial even in the absence of a motion for a mistrial. In this matter, defense counsel knowingly lied to the jury by accusing me of orchestrating medical care. 23. Similarly, in Huff v. Rodriguez, 64 A.D.3d 1221 (4th Dept. 2009), one day before opening statements, defendants’ attorney acknowledged that he had received a report of plaintiff’s accident reconstruction expert concluding “that the sole proximate cause of the accident was the … action of [defendant].” Plaintiff did not call her expert at trial and, during his summation, defendants’ attorney blatantly lied when he told a jury that plaintiff failed to call that expert “because his testimony would not support plaintiff’s claim that defendant caused the accident.” On plaintiff’s 9 9 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 motion, the court found that that statement alone warranted a new trial as it could not conclude that the comment did not influence the jury’s verdict. Compare this to counsel lying to the jury when he told them I coordinated medical care and manipulated medical diagnoses when he knew that, in the timeframe referred to in his defamatory statements, my firm had not even yet been retained by plaintiffs. 24. In Nelson v. Bogopa Service Corp., 123 A.D.3d 780 (2nd Dept. 2014), a triage nurse for defendant was precluded from testifying. During summation, plaintiff’s counsel knowingly and intentionally lied to a jury about the reason defendant did not call the nurse to testify. The court held that counsel’s comments in summation were not supported by the evidence, were inflammatory and unduly prejudicial, depriving the defendants of a fair trial. 25. In Valenti v. Gadomski, 203 A.D.3d 783 (2nd Dept. 2022) after the lower court denied a motion for a new trial, the Second Department reversed and ordered a new trial after defense counsel made multiple improper and inflammatory comments about the relationship between counsel for the plaintiff and the plaintiff’s expert pathologist during the cross- examination of that expert and during his summation to the jury. Similar comments were made by counsel in this matter when he commented upon a supposed relationship between me and Dr. Lipton. Specifically, counsel alleged that I was behind plaintiff going for an MRI at Montefiore because “they knew what the ultimate result was going to be with Lipton. It was going to be a brain injury.” (Exhibit 28, p. 20) 26. In Ortiz v. Jaramillo, 84 A.D.3d 766 (2nd Dept. 2011), the Second Department affirmed the lower court’s setting aside a verdict and granting a motion for a new trial due to comments made by plaintiffs’ counsel, including his repeated denigration of the veracity of defense 10 10 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 witnesses and his vouching for the plaintiffs’ witnesses. The court also noted that those comments were not isolated, characterized them as inflammatory and so unduly prejudicial as to have tainted the proceedings and deprived defendant of a fair trial. 27. In McArdle v. Hurley, 51 A.D.3d 741 (2nd Dept. 2008), defense counsel’s use of the plaintiff’s husband’s disability retirement as evidence that her entire family was seeking to “max out in the civil justice system,” was enough for a court to grant a new trial on the grounds that that one comment so contaminated the proceedings as to deprive the plaintiff of a fair trial. 28. In our case, it is undisputed that during summation, defense counsel argued to the jury that plaintiff, her treating doctors, expert witnesses and her lawyer were all intentionally dishonest, collaborating in a conspiracy. Specifically, defense counsel accused me of, among other thigs, orchestrating plaintiff’s medical care, convincing doctors to render a false diagnosis of brain injury and otherwise suborning perjury. He accused Dr. Lipton of fabricating the results of an MRI. More importantly, like counsel in Huff and Nelson, many of counsel’s accusations were made with the knowledge that they were false. In both matters, blatant lies to the jury about significant issues were enough to warrant a new trial. They likewise warranted a new trial in this matter. WHEREFORE, plaintiffs respectfully request that defendants’ motion be denied in its entirety and for such other and further relief as this Court may deem just and proper. Dated: Mohegan Lake, New York June 7, 2023 _______________________________ Kenneth B. Goldblatt, Esq. 11 11 of 12 FILED: DUTCHESS COUNTY CLERK 06/07/2023 10:00 AM INDEX NO. 2018-50958 NYSCEF DOC. NO. 444 RECEIVED NYSCEF: 06/07/2023 CERTIFICATION OF LENGTH OF PAPERS The undersigned, Kenneth B. Goldblatt, Esq., hereby certifies, pursuant to Uniform Civil Rule 202.8- b, that this Affirmation is in compliance with the applicable word count limit. The total word count for this document is 3,239. Dated: Mohegan Lake, New York June 7, 2023 ______________________________ Kenneth B. Goldblatt, Esq. 12 12 of 12