On October 27, 2008, the infant plaintiff allegedly sustained personal injuries as a result of a collision between a vehicle owned by Diana Antwi and operated by defendant Jason Sandy, and a vehicle owned by defendant Merlene Carter and operated by defendant Fred Carter, at the intersection of East 58th Street and Linden Boulevard in Brooklyn. The infant plaintiff was a passenger in the vehicle operated by Fred Carter.

This Court presided over the trial of the action from March 18 through March 21, 2013. Defendant Fred Carter testified; defendant Jason Sandy gave direct testimony, but did not return to court to allow for cross-examination by Plaintiffs and the Carter defendants. As a result, the Court struck Jason Sandy's direct testimony. However, the parties were permitted to read Jason Sandy's deposition testimony as appropriate. (See CPLR 3117.)

One of the main issues in the case was whether or not, as per the narrative portion of a certified police accident report, defendant Jason Sandy told the police officer that he "did not [*2]know the light was red", and that he "lost control" of his vehicle. At his deposition, Jason Sandy denied that he proceeded through a red light, and there were inaccuracies within the police accident report that Plaintiffs' counsel argued undermined the reliability of the report.

Prior to closing arguments, Plaintiffs reached a settlement agreement with defendants Antwi and Sandy in the amount of $100,000, subject to the Court's approval of an infant compromise application. After settling the case, Sandy and Antwi, as well as their counsel, no longer participated in the trial, and were absent from the courtroom during summations and charge.

At the charge conference, the Court determined that, for purposes of General Obligations Law § 15-108, the question of defendant Jason Sandy's negligence would be submitted to the jury. Defendants Fred Carter and Merlene Carter bore the burden of demonstrating that Sandy was negligent and that his negligence was a substantial factor in bringing about the accident. (See generally Malone v Pindyck, 32 AD3d 827, 828 [2d Dept 2006]; Zalinka v Owens-Corning Fiberglass Corp., 221 AD2d 830, 831 [3d Dept 1995]; Bigelow v Acands, Inc., 196 AD2d 436, 438 [1st Dept 1993].)

Prior to summations, defense counsel asked the Court whether he could address the issue of Sandy's stricken direct testimony. In response, the Court instructed counsel, in pertinent part, as follows:

"I think the short answer - - well, there's the short answer has two parts: One part is that you should not be addressing it at all with the jury. The second part is I think I can remind them and I'll look at the [charge] to see what's the appropriate portion of the charge where I make reference to their not considering information that has been stricken from the record. I can remind them that Mr. Sandy's testimony was stricken from the record. And I can say at that point and in this case that's particularly important because two of the attorneys didn't have the opportunity to question Mr. Sandy. And then just leave it at that." (Trial Excerpt, "TE", at 8.)

Defense counsel then asked the Court whether the Court would tell the "jury that Mr. Sandy didn't come back to court and that the reason that he did [not] - - his testimony is being stricken?" In response, the Court told counsel that, when the testimony was stricken, the Court instructed the jury "just the opposite, that they should not speculate at all as to why his testimony was being stricken and I think the reason that's particularly important is it's going to be consistent with . . . why I [told] them [counsel for Sandy and Antwi] isn't here, which is, again, that they are not to speculate ...why [counsel for Sandy and Antwi] isn't here." (TE at 9.)

During his summation, counsel nonetheless addressed the issues of Mr. Sandy's stricken testimony, and the absence of both Sandy and his counsel from the courtroom. In the beginning of his summation, counsel stated: [*3]

"Now, just a couple of things that I just want to address with you: Number one: Yesterday, Judge Battaglia struck the testimony of the defendant and the judge will address that to you in his closing remarks." (TE at 12.)

"And as you remember, and as the judge indicated when you all came into court, that Mr. Sandy and his attorney are no longer part of this case. And yesterday, on my case, I moved to introduce into evidence the certified police report and I will read that to you in a minute, but what's really important is that there was evidence that Mr. Sandy spoke to the police, but Mr. Carter was frantic after the accident and left the scene very shortly with his niece.

And from the day of the accident happened until today, he's never had any conversations with the police about how this accident happened in October of 2008 at this intersection. And yesterday, when I introduced this document into evidence, this empty chair by counsel's objection, she didn't want this document coming into evidence. She was objecting strenuously to have this - - avoid this document from coming into evidence.

And it just so happens, it's ironic, once this document is introduced into evidence and it reads - - and I'll read it to you verbatim in the description part of the report: At TPO, meaning at time, place, vehicle number 1, which is identified as now Jason Sandy, states while traveling eastbound on Linden Boulevard, he did not know the light was red. He attempted to break, he lost control, striking or strike vehicle number 2 and number 3.'

This document which you have and which you'll have an opportunity to review is the reason that Mr. Sandy is no longer in this case. It's an admission." (TE at 15-16 [emphasis added].)

The Court interrupted counsel's summation and excused the jury. Outside the presence of the jury, the Court stated as follows:

"Mr. Miller, you have tried so hard, it seems, to address issues with the Court, so that that wouldn't become a problem before the jury. And yet, what you just did creates a serious problem. First of all, I didn't interrupt you when you said that Mr. Sandy was no longer a part of the case, choosing to address something that I purposefully did not. However, to suggest that he's not part of the case because of anything which would suggest his responsibility is clearly inappropriate and of such a serious prejudicial nature, that if [Plaintiffs' counsel] asks for a mistrial, I will seriously consider it." (TE at 16-17.)

In response, Plaintiffs' counsel moved for a mistrial, which was reserved for decision after the jury rendered a verdict. When the jury returned, the Court gave the jury the following curative instruction:

"I just want to remind you that when we got together yesterday morning, I told you that Mr. Sandy would not be here. And I stressed that you were not to speculate as to why he's not here. I told you when you came in this morning that [counsel for Sandy and Antwi] will not be continuing with us, and I told you that you should not speculate as to why she's not continuing with us, and I remind you of that. But, now I have to, particularly, tell you that you should make no conclusion, inference, speculation, guess, feeling, attitude, whatever that the failure of Mr. Sandy to be here today or the failure of [counsel] to be here today has anything to do with what is in that police report." (TE at 19.)

After the conclusion of summations, a charge to the jury on the law, and deliberations, the jury returned a verdict finding that defendant Fred Carter was not negligent in the happening of the accident. After the verdict, Plaintiffs counsel again renewed her motion for a mistrial.

Plaintiffs contend that they are entitled to a mistrial based upon defense counsel's suggestion in his closing argument that the reason that the settling tortfeasor, Jason Sandy, was not present in the courtroom was because he admitted in the police accident report that he was negligent. Plaintiffs contend that even though it was a single comment, that it caused them prejudice, and that the Court's instruction was not sufficient to cure the prejudice.

CPLR 4402 provides that "[a]t any time during the trial, the court, on motion of any party, may order a continuance or a new trial in the interest of justice on such terms as may be just".

Declaring a mistrial may be appropriate where, for example, an attorney makes comments in summation that improperly divert the attention of the jury from the evidence and invite the jury to speculate (see e.g. Vasquez v Costco Companies, Inc., 17 AD3d 350, 352 [2d Dept 2005]); where an attorney in summation disregards the court's rulings and attempts by "suggestion and insinuation to get before the jury" matters that have been excluded (see e.g. Nieves v City of New York, 277 AD 357, 357 [1st Dept 1950]); where an attorney in summation becomes an unsworn witness (see e.g. Clarke v New York City Transit Authority, 174 AD2d 268, 276 [1st Dept 1992]); where an attorney by inappropriate and prejudicial comments undermines a public policy (see Bagailuk v Weiss, 110 AD2d 284, 285-86 [3d Dept 1985]); or where an attorney otherwise makes prejudicial and inflammatory remarks (see Reynolds v Burghezi, 227 AD2d 941, 942 [4th Dept 1996]; Clarke v New York City Transit Authority, 174 AD2d at 276].) Indeed, it has been recognized that summations are "a critical stage" of a trial, and that prejudicial or inflammatory comments made at that time are particularly troublesome. (See e.g. Bagailuk v Weiss, 110 AD2d at 287.) [*5]

"The decision to grant or deny a mistrial is within the sound discretion of the trial court and is to be made on a case-by-case basis." (Chung v Shakur, 273 AD2d 340, 340 [2d Dept 2000].) "The facts in each case must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered." (Id. at 340-41[internal citations and quotation marks omitted].)

While generally an admonishment to counsel and a curative instruction to the jury may correct any prejudice of an improper comment by counsel made to a jury (see Harrison v City of New York, 109 AD3d 808, 809 [2d Dept 2013]; Fekry v New York City Transit Authority, 75 AD3d 616, 617 [2d Dept 2010]), there are situations where curative instructions do not suffice to neutralize the prejudice (see e.g. Bagailuk v Weiss, 110 AD2d at 287.)

Here, again, one of the central issues before the jury at this trial was whether or not the certified police accident report, which was admitted into evidence, correctly noted that Mr. Sandy admitted that he did not see the red light and that he lost control of his vehicle. Rather than arguing what was in the police accident report, as well as other admitted evidence, defense counsel, against the instructions from the Court, directed the jury to consider a matter that was expressly not to be considered, i.e., the absence of Sandy and his attorney from the courtroom, and suggested that their absence from the courtroom was due to Sandy's admission of fault in the police accident report. Such comment invited the jury to improperly speculate as to possible settlement by Antwi and Sandy (or a court determination as to their liability).

Although counsel did not outright tell the jury that Plaintiffs and Sandy reached a settlement agreement based upon Sandy's admission, in context that was implied by his comment. Because the jury could fairly assume that defense counsel knew the reason why Sandy and his counsel were not present in the courtroom, they may have relied upon defense counsel's comment as to the explanation.

Even putting aside that defense counsel disregarded clear instructions from the Court to not address the stricken testimony of Mr. Sandy, or the absence of Mr. Sandy and his attorney during summation, defense counsel's comment was sufficiently prejudicial to Plaintiffs, and so undermined the public policy of the State as set forth in General Obligations Law § 15-108 and CPLR 4533-b, so as to warrant a new trial.

CPLR 4533-b provides, in pertinent part, that "[i]n an action for personal injury...any proof as to payment by or settlement with another joint tort-feasor, or one claimed to be a joint tort-feasor, offered by a defendant in mitigation of damages, shall be taken out of the hearing of the jury." In enacting CPLR 4533-b, the Legislature was concerned that a "jury's knowledge of a settlement, even with limiting instructions, would result in the return of a nominal verdict on the assumption that the settling tort-feasor must have been the only culpable party." (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C4533-b at 729; see also Pellegrino v New York City Transit Authority, 177 AD2d 554, 558 [2d Dept 1991]; Abernathy v Azzoni, 78 Misc 2d 832, 833 [Sup Ct, Suffolk County 1974][Lazer, J.] [CPLR 4533-[*6]b was enacted out of "concern that where a prior payment has been revealed the jury might return a nominal verdict in the belief that the tort-feasor who settled before is the only wrongdoer merely because he settled"]).

In furtherance of such policy, it has been held that a settling tortfeasor is not required to attend or participate in a trial of an action against remaining defendants because "removal of a settling tortfeasor [from a trial] as a party encourages settlement while not prejudicing the rights of the non-settling defendants." (See Mielcarek v Knights, 50 AD2d 122, 128 [4th Dept 1975].) In this regard, the Fourth Department noted that "[u]nwarranted and prejudicial speculation [regarding the settling tortfeasor's absence] may be cured by careful instructions to the jury by the trial judge." (Id.)

In Lowenstein v City of New York (50 AD2d 565 [2d Dept 1975]), the Second Department held that the plaintiff was entitled to a new trial based upon, among other things, the defendant's informing the jury of "plaintiff's prior six-figure settlement" with another tortfeasor.

In Pellegrino v New York City Transit Authority (177 AD2d 554), the Second Department affirmed a trial court determination to preclude a non-settling defendant from addressing the plaintiff's settlement with the settling tortfeasor. The Second Department stated as follows:

"Nor should the TA's settlement with [plaintiff] have been paraded before the jury. Such information could only have suggested to the jury that the TA was the sole culpable party. . . Furthermore, to the extent that jury speculation would discourage defendants from settling with injured plaintiffs and seeking contribution or indemnification from other defendants thereafter, the disclosure of such matters to the jury would contravene the policy of the State." (Id. at 558 [internal citations omitted].)

Similarly, here, defense counsel's comment invited improper jury speculation about Mr. Sandy's absence that contravenes an important State policy encouraging parties to settle cases without concern or fear that such settlement would prejudice any claims as against non-settling parties. Although the Court gave a curative instruction, such instruction may have exacerbated the situation by again pointing out the absence of Mr. Sandy in relation to the alleged admission in the police accident report. In any event, it was the Court's impression at the time, as reflected in the quoted excerpts of the transcript, and it remains the Court's assessment, that the instruction did not neutralize the prejudice to Plaintiffs.

The Court does not suggest that defense counsel intentionally ignored the Court's instruction, nor that counsel's comments were part of a pattern of misconduct on his part during the trial. But prejudice requires neither, and it is prejudice that the Court finds sufficient to warrant a new trial.

Accordingly, Plaintiffs' motion for an order, pursuant to CPLR 4402, granting them a new [*7]trial is granted. The branch of Plaintiffs' motion seeking costs is denied with leave to renew upon a proper showing at the conclusion of the new trial. The parties shall appear before the Jury Clerk for jury selection at 9:30 a.m. on January 2, 2014, and shall contact chambers at the conclusion of each day of jury selection.

November 22, 2013___________________

Jack M. Battaglia

Justice, Supreme Court