Caraballo v. City of New YorkCaraballo v. City of New York
Dissenting Opinion
dissent in a memorandum by Fein, J., as follows: The seven-year-old infant plaintiff left his apartment building at 20 Catherine Slip in Manhattan in advance of the rest of his family, to hop and skip ahead. The family was on its way to church on this Sunday evening in February, 1977. The child slipped on the icy pavement and fell against a perimeter fence maintained by defendant New York City Housing Authority, impaling his left eyelid on a six- to seven-inch barbed wire protrusion. The testimony was that this dangerous condition had existed for about 9 or 10 months. The child suffered a severe and painful “through and through” laceration, requiring three operations at New York Eye and Ear Infirmary over a 21-month period. He was left with a 70% traumatic ptosis (drooping) of the eyelid due to depressed lavator (muscular) function, resulting in impairment of vision to the extent of loss of the superior (upper) 50% range of view. He cannot see straight forward or upward, and can only look downward. In other words, he can only see half of what he had been able to see without the drooping eyelid. He is also disfigured by cystic granuloma (knobbing of the tissue) from the scars of the operations. The ptosis apparently could not be corrected by the surgical procedures, and plaintiffs’ medical expert described this condition as “permanent”. Defendants’ medical expert, an ophthalmic surgeon, suggested the availability of a common and “very effective” operation called “Frontalus suspension”, whereby the upper lid is sutured to the eyebrow so that “when the patient elevates his brow his lid comes up and you can uncover all or much of the pupil you want.” He added that this plastic surgical procedure is generally indicated for patients as to whom ptosis operations have failed. Defendants’ medical expert’s predictions for success as a result of this surgical procedure were optimistic. The doctor testified that at his hospital, Manhattan Eye and Ear Hospital, 15 to 20 frontalus suspensions were performed under his supervision each year, “ten or 12 of them already” by August of that year, and all were successful. Plaintiff introduced hospital records revealing that only two such operations designated as “frontalus suspensions of an eyelid ptosis” had been performed at Manhattan Eye and Ear Hospital in the year and one half preceding the trial. On this basis, on summation plaintiffs’ counsel unleashed a vitriolic attack on defendants’ medical expert. We are all agreed that the evidence was sufficient to establish proximate cause. In this case the infant plaintiff’s fall against the fence resulted from a normal activity, unlike the unusual and inherently dangerous act of the plaintiff child in Rivera v City of New York (
Lead Opinion
Judgment, Supreme Court, New York County (Pécora, J.), entered September 18, 1980, on jury verdict, in favor of plaintiff, is reversed, on the law and the facts, and a new trial is ordered, without costs. We are compelled to reverse this judgment because of the grossly improper and inflammatory summation by plaintiffs’ attorney, Mr. Raymond B. Schwartzberg. The summation had as its continuing theme a personal attack on defendant-appellant’s attorney, unsubstantiated charges of peijury and subornation of peijury; racial overtones; and assertions of personal knowledge and personal opinion as to the case and the credibility of witnesses. Among the things that plaintiffs’ attorney said in his summation were: “this clever lawyer has been jabbing and moving around for two weeks with illegal procedures”; “[h]e is a tricky lawyer”; “he is skilled, experienced, tricky, deceptive, and that is what this is really all about, and that is what is happening here”; “and the only thing you do is give cleverer and perhaps evil adversary opportunity to twist people around in their words [explaining plaintiff’s failure to call some witnesses].” He further said, “They will say anything to beat this case because, ladies and gentlemen, there’s a lot of money involved here.” “They bring in a phony doctor for a price”. “He said yes, there will be a bill. How much do you charge for perjury, doctor?” “What is so great and exclusive about Manhattan Hospital where the doctors come down for a price and lie to you for a lawyer for a Housing Authority for a price, a price they wouldn’t tell you.” Combining charges of peijury and subornation of peijury with racial overtones, he said, “He brought in that poor black man. They put him up to coming here. They used him.” “He didn’t do it from pressure like that poor black man did, didn’t do it for that. He did it for money.” Adding to these the statements of his personal knowledge of the facts and his personal opinion as to the justness of his cause and the credibility of witnesses, in violation of DR 7-106(C) (3), (4) of the Code of Professional Responsibility, he said, “I forgive the black man, the person, I forgave him, but I cannot forgive Dr. Lisman, Emeritus for coming in and lying to you, and you know how I knew it? I smelled it because I said to him name one.” Referring to a valid and required assertion of physician-patient privilege, he said, “[W]hen this lawyer yelled privilege, I knew that was a lie”. Referring to a former drug addict witness for plaintiffs, he said, “I would invite him to my home for dinner. I see nothing wrong with him.” Also: “I am familiar with Dr. Budabin and his reputation as an eminent neurologist”. “[H]old your hats because I have a figure. I know what these cases are worth.” In Cohen v Covelli (