To be Argued by:
LAWRENCE HEISLER
Supreme Court of the State of New York
Appellate Division – First Department
O
MIRIAM LEVY OATES, as Administratrix of the Estate of
RACHEL LEVY, deceased, and MIRIAM LEVY OATES,
Individually and HADASSAH LEVY,
Plaintiffs-Respondents,
-against-
NEW YORK CITY TRANSIT AUTHORITY,
Defendant-Appellant,
-and-
MANHATTAN AND BRONX SURFACE TRANSIT OPERATING
AUTHORITY, MTA BUS COMPANY, METROPOLITAN
TRANSPORTATION AUTHORITY and “JOHN DOE”
who is intended to be the bus operator,
Defendants.
BRIEF FOR DEFENDANT-APPELLANT
LAWRENCE HEISLER, ESQ.
Attorney for Defendant-Appellant
130 Livingston Street
TORTS Division – Room: 1147
Brooklyn, New York 11201
(718) 694-3851
Lawrence.Heisler@nyct.com
Bronx County Clerk’s Index No.: 302214/2007
APPELLATE INNOVATIONS
(914) 948-2240
8058 Printed on Recycled Paper
i
TABLE OF CONTENTS
Pages
APPELLANT’S BRIEF ............................................................................................... 1
PRELIMINARY STATEMENT ............................................................................... 2
QUESTIONS PRESENTED ..................................................................................... 4
STATEMENT OF FACTS ......................................................................................... 5
ARGUMENT
POINT I
PLAINTIFF FAILED TO PROVE THAT THE DRIVER
WAS GUILTY OF NEGLIGENCE. EVEN AIDED BY
THE LESSER NOSEWORTHY BURDEN, PLAINTIFF
FAILED TO MAKE OUT A CASE ........................................................... 30
POINT II
PLAINTIFF FAILED TO PROVE THAT DECEDENT
ENDURED ANY CONSCIOUS PAIN AND SUFFERING.
THE CLAIM SHOULD BE DISMISSED. IN ANY EVENT,
THE $300,000 AWARD FOR DECEDENT’S 2-5 SECOND
OF PAIN AND SUFFERING DEVIATES MATERIALLY
FROM REASONABLE COMPENSATION ........................................... 37
ii
POINT III
UNDER EPTL 5.4.3, ONLY A DISTRIBUTEE MAY
RECOVER DAMAGES FOR WRONGFUL DEATH.
DECEDENT, RACHEL LEVY WAS SURVIVED BY HER
MOTHER, HADASAH AND DAUGHTER, MIRIAM. EPTL
4.1.1 PROVIDES THAT WHERE A PERSON IS SURVIVED
BY A CHILD AND A PARENT, THE CHILD IS THE SOLE
DISTRIBUTEE. IT FOLLOWS THAT THE AWARD THE
JURY MADE TO DECEDENT’S MOTHER CANNOT
STAND. AND THE COURT CAN CONSIDER THE
AUTHORITY’S ARGUMENT, EVEN THOUGH IT WENT
UNPRESERVED BELOW .......................................................................... 45
POINT IV
PLAINTIFF, MIRIAM OATES-LEVY FAILED TO PROVE
THAT SHE SUSTAINED $100,000 IN PECUNIARY LOSSES
ARISING OUT OF HER MOTHER’S DEATH .................................... 55
POINT V
THE CUMULATIVE EFFECT OF PLAINTIFF’S
INAPPROPRIATE REMARKS DEPRIVED THE
AUTHORITY OF A FAIR TRIAL ............................................................. 57
CONCLUSION .......................................................................................................... 63
iii
TABLE OF AUTHORITIES
Pages
Cases:
Aragon v A & L Refrig. Corp.,
209 AD2d 268 .................................................................................................. 49
Berkowitz v. Marriott Corp.,
163 A.D.2d 52 (1st Dept. 1990)...................................................................... 58
Berrios v. 735 Avenue of the Americas,
103 A.D.3d 472 [1st Dept. 2013] .................................................................... 53
Caton v. Doug Urban Construction Co.,
65 NY2d 909 (1985) ........................................................................................ 42
Carter v. New York City Health & Hosps. Corp.,
47 A.D.3d 661 (1st Dept. 2008) ............................................................... 46, 47
Clark v. Interlaken Owners, Inc.,
2 A.D.3d 338 (1st Dept. 2003) ................................................................. 49, 51
Cotter v Pal & Lee Inc,
86 A.D.3d 463 [1st Dept. 2011] ...................................................................... 35
Cropper v. Stewart,
117 A.D.3d 417 [1st Dept. 2014) ................................................................... 61
Cummins v. County of Onondaga,
84 NY2d 322 (1994) ........................................................................................ 38
DeLong v. County of Erie,
60 NY2d 296 [1983] ........................................................................................ 52
Delosovic v. City of New York,
143 Misc.2d 801 (Sup. Ct. NY Cty. 1989),
aff’d 174 A.D.2d 407 (1st Dept. 1991 ............................................................. 39
iv
Dibble v. NYCTA,
76 A.D.3d 272 (1st Dept. 2010) ...................................................................... 42
Donlon v. City of New York,
284 A.D.2d 13 [1st Dept. 2001] ...................................................................... 43
Doomes v Best Tr. Corp.,
17 N.Y.3d 594 (2011) ..................................................................................... 35
Espinal v Vargas,
101 A.D.3d 1072 (2nd Dept. 2012) ................................................................ 37
Estate of Thayer,
1 Misc. 3d 791 (Surr. Ct. Madison 2003) ............................................... 46, 47
Fa-Shun Ou v. N.Y. City Transit Auth.,
309 A.D.2d 781 (2nd Dep't 2003) ................................................................... 43
Ferguson v. City of New York,
73 A.D.3d 649 (1st Dept. 2010) ............................................................. 41, 42
Fiederlein v. New York City Health & Hospitals Corp.,
56 N.Y.2d 573 (1982) ...................................................................................... 38
Glaser v. City of Orange,
54 A.D.3d 997, 864 N.Y.S.2d 557 (2nd Dept 2008) .................................... 43
Gonzalez v. New York City Housing Auth.,
77 N.Y.2d 663 (1991) ...................................................................................... 55
Grasso v. Koslowe,
11 Misc.3d 1086A, 819 N.Y.S.2d 848 (Sup. Ct. Richmond Co. 2006),
aff’d. 38 A.D.3d 599 (2nd Dept. 2007) .......................................................... 60
Hernandez v. New York City Health & Hospitals, Corp.,
78 NY2d 687 (1991) ........................................................................................ 45
Kevra v. Vladagin,
96 A.D.3d 805 (2nd Dept. 2012) ..................................................................... 40
v
La Montana Moving & Storage,
247 A.D.2d 333 (1st Dept. 1998) ................................................................... 54
Matter of Adler,
869 F. Supp. 1021 (EDNY 1994) .................................................................. 39
McDougald v. Garber,
73 N.Y.2d 246 [1989] ............................................................................... 37, 39
Mehra v. Bentz,
529 F.2d 1137 (2nd Cir. 1975) ......................................................................... 31
Melendez v. New York City Transit Auth.,
196 A.D.2d 460 (1st Dept. 1993) ................................................................... 60
Merola v. Catholic Med. Ctr. of Brooklyn & Queens, Inc.,
24 A.D.3d 629 (2nd Dept. 2005) ..................................................................... 54
Minichiello v. Supper Club et al,
296 A.D.2d 350 (1st Dept. 2002) ................................................................... 59
Morico v. Green Bus Lines, Inc.,
429 F. Supp. 23 (EDNY 1997), ..................................................................... 48
Noseworthy v City of New York,
298 NY 76 (1948) ............................................................................................ 34
Nuccio v. Chou,
183 A.D.2d 511 (1st Dept. 1992) ............................................................ 58, 59
Peguero v. 601 Realty Corp.,
58 A.D.3d 556 (1st Dept. 2009) ............................................................... 50, 51
People v. Dekle,
56 N.Y.2d 835 (1982) ...................................................................................... 50
Perez v St. Vincents Hosp. & Med. Ctr. of N.Y.,
66 A.D.3d 663, 886 N.Y.S.2d 486 (2nd Dept. 2009) ................................. 55
vi
Phiri v. Joseph,
32 A.D.3d. 922 (2nd Dept. 2006) .................................................................... 41
Pizzuto v. County of Nassau,
240 F. Supp. 2d 203 (EDNY 2003) .............................................................. 47
Public Adm'r of Kings County v. U.S. Fleet Leasing, Inc.,
159 A.D.2d 331 (1st Dept. 1990) ................................................................... 41
Ramos v. La Montana Moving & Storage, Inc.,
247 A.D.2d 333 (1st Dept. 1998) ................................................................... 43
Ratka v St. Francis Hosp.,
44 NY2d 604 .................................................................................................... 45
Rodriguez v. New York City Housing Auth.,
209 A.D.2d 260 (1st Dept. 1994) ................................................................... 60
Romano v. Stanley,
90 NY2d 444 (1997) ........................................................................................ 42
Sanchez v. MaBSTOA,
170 A.D.2d 402 (1st Dept. 1991) ................................................................... 59
Santana v. DeJesus,
110 A.D.3d 561 (1st Dept. 2013) ................................................................... 44
Santos v National Retail Transp., Inc.,
87 A.D.3d 418 [1st Dept. 2011] ...................................................................... 51
Selzer v. New York City Transit Auth.,
100 A.D.3d 157 (1st Dept. 2012) ................................................................... 58
Tilley v Hudson Riv. R. R. Co.,
24 NY 471 ......................................................................................................... 52
Trillo v. Gerry,
135 A.D.2d 625 (2nd Dept. 1987) .................................................................. 32
vii
Valenzuala v. City of N.Y.,
59 A.D.3d 40 [1st Dept. 2008] ................................................................. 58, 59
Wank v. Ambrosino,
307 NY 321 (1954) ................................................................................... 30, 43
Williams v. New York City Transit Auth.,
108 A.D.3d 403 [1st Dept. 2013] .................................................................... 61
Zurita v. McGinnis,
7 A.D.3d. 618 (2nd Dept. 2004) ...................................................................... 41
Rules, Laws & Statutes:
231 NY Jur. Death, § 249 ........................................................................................... 46
CPLR 5501(c) ............................................................................................................... 43
EPTL ...................................................................................................................... Passim
THE JOURNAL OF APPELLATE PRACTICE AND PROCESS;
Vol. 11, No. 2 (Fall 2010) ..................................................................................................50
1
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: FIRST DEPARTMENT
-------------------------------------------------------------------------x
MIRIAM LEVY OATES, as Administratrix of the Estate of
RACHEL LEVY, deceased, and MIRIAM LEVY OATES,
Individually, and HADASAH LEVY,
Plaintiffs-Respondents, Index No.
-against- 302214/07
THE NEW YORK CITY TRANSIT AUTHORITY,
Defendant-Appellant,
-and-
MANHATTAN & BRONX SURFACE TRANSIT OPERATING
AUTHORITY, MTA BUS COMPANY, METROPOLITAN
TRANSPORTATION AUTHORITY
and “JOHN DOE”, who is intended to the bus operator.
Defendants.
-------------------------------------------------------------------------x
APPELLANT’S BRIEF
The New York City Transit Authority (the “Authority,” or “Transit
Authority,”) submits this brief, appealing from a judgment (A-5a), entered
upon the verdict of a Bronx County jury, awarding plaintiffs damages
stemming from the death of Rachel Levy, who was run over by an Authority
bus. The jury awarded plaintiffs $300,000 for decedent’s pain and suffering;
$550,000 for Hadasah Levy’s pecuniary damages, and $100,000 for Miriam
Oates’s pecuniary losses. On this appeal, the Authority challenges both liability
and damages.
2
PRELIMINARY STATEMENT
Rachel Levy was found lying face down, outside a bus stop, 4-feet in the
roadway, a tire tread running down her back, dead, the victim of a massive
trauma. Police investigators would later discover that decedent had been struck
by the Authority’s bus, but beyond that, the evidence plays it close to the vest;
it tells us nothing that would allow a rational jury to find the Authority
negligent.
So, the driver whose bus struck decedent knew nothing about the
accident. No one saw decedent before she died. No one really knows where she
was coming from, where she was going, how she wound up on the roadway.
In proving that the bus struck decedent, plaintiff has proven only half a
case. To prevail, she also had to show that the driver failed to exercise due care.
By failing to make that showing, plaintiff failed to make out a case.
If the Court disagrees, it should nevertheless send the case back for a
new trial. Plaintiff engaged in misconduct, her improper remarks inflaming the
jury against the Authority. Plaintiff, for example, told the jury that the
Authority had demoted the bus driver, a killer, really, who recklessly ran over
decedent, leaving her to die in the roadway like a dead squirrel. And plaintiff, in
essence, accused defense counsel of being guilty of anti-Semitism.
Damages are equally problematical. The jury believed plaintiff’s expert
who said that decedent survived for several seconds, awarding $300,000 for her
3
pain and suffering. The award is too high, given what the Courts have
sustained, but even more to the point, plaintiff failed to prove that decedent
sustained conscious pain of any duration. The Court should vacate the award in
its entirety.
The jury awarded decedent’s mother, Hadasah Levy, $550,000 for the
custodial services she lost when her daughter, Rachel died. Once again, the
award is too high. But beyond its excessiveness, the award is untenable as a
matter of law. Under the EPTL, only a person who qualifies as a distributee
may recover damages for wrongful death. Where, as here, a person dies leaving
a child and a parent, only the child counts as a distributee (See, EPTL 4.1.1 [a]
[4]). The decedent’s parents do not. Because Rachel left a surviving child,
Miriam Oates, it follows that Hadasah, Rachel’s mother fails to qualify as a
suitable plaintiff. The award for Hadasah is thus a nullity. It should be
dismissed outright.
Plaintiff will correctly point out that the Authority, below, did not
challenge Hadasah’s right to recover for her daughter’s death. But the Court
should still dismiss the claim, because the error was fundamental. And there are
strong policy grounds for allowing the Authority to challenge an award the law
deems a nullity.
4
QUESTIONS PRESENTED
1. Did plaintiff make out a prima-facie case of negligence given that she
cannot establish that the driver could have spotted decedent in time to
avoid striking her, and given that plaintiff’s expert failed to base his
conclusions on competent evidence? The correct answer is no.
2. Did plaintiff’s comments, including those accusing the Authority of
buying witnesses, treating decedent like a “squirrel,” or “roadkill,”
deprive the Authority of a fair trial? Yes.
3. Did plaintiff prove that Rachel Levy suffered conscious pain, in the
absence of any evidence that she was cognitively aware after she was
struck, and in the absence of any other indicia of consciousness? The
correct answer is no. In any event, the $300,000 award for 2-5 seconds
of pain exceeds reasonable compensation.
4. Was Hadasah Levy, decedent’s mother, who failed to qualify as a
distributee, entitled to wrongful death damages? No. In any event, the
$550,000 award was excessive.
5. Was the $100,000 award to decedent’s adult daughter, Miriam Oates
excessive, in light of the frayed connection between the daughter and the
mother, and in light of Miriam’s failure to show that her mother offered
her sustained guidance? Yes.
5
STATEMENT OF FACTS
Opening to the jury—plaintiff promises to solve the mystery of Decedent’s death.
In brisk and confident detail, plaintiff opened to the jury promising to
explain how decedent had died, and why the Authority’s negligence was to
blame for it.
Plaintiff began by setting the scene. It was Sunday, October 29, 2006,
“…a beautiful fall day…” (A-31), 2:15 in the afternoon. Rachel Levy, a 51-year-
old home attendant had apparently just finished work for an elderly client on
Henry Hudson Parkway. According to plaintiff, Rachel left a housing
development where her client lived, walking down a long, circular driveway,
headed for a bus stop just outside the building (A-34-35). Rachel planned to
take the B-10, and then transfer to the B-30 from Bainbridge Avenue, a one
hour twenty minute ride home (A-35).
But Rachel never made it, all because of the negligence of the
Authority’s bus operator, one Brady, who didn’t notice Rachel standing in the
stop, waiting to board. Brady entered the stop, too close to the curb, the chassis
of the bus extending over the sidewalk. When Brady pulled out, the front right
corner of his bus “slammed” Rachel Levy, who was still in the stop, propelling
her into the roadway, where he promptly ran her over (A-35).
Brady then drove away, “…leaving her lying on the ground…like a dead
squirrel...” (A-35). It was bad enough that Brady killed Rachel Levy. Even
6
worse, he tried to cover it up, heading off, as she lay flattened like a slice of
pizza (A-49, line 14). Even worse, Brady steadfastly denied that he was aware
of the accident, disclaiming any knowledge of what he’d done.
But the Transit Authority knew. It demoted Brady to a janitor—a
remark that drew defense counsel’s objection and a prompt motion for a
mistrial (A-39-41). The trial court admonished plaintiff to stop it, and
instructed the jury to ignore the remark (A-42-43).
Plaintiff continued. To escape liability, the Authority had hired “…one
of the best defense attorneys in the Bronx and a bunch of witnesses…” (A-45).
And not content with contesting liability, the Authority, plaintiff continued,
would also challenge damages, going to the trouble of hiring a “…bunch of
experts that are going to come to court to try to prove to you that her life was
worth nothing. Zero.” (A-45).
In truth, though, Rachel was irreplaceable, a source of support to her
disabled mom, a supportive mother to her own daughter, as well as a loyal
sister. “The Earth lost an angel when [decedent] was taken by the New York
Transit bus.” See, A-54. And despite the Transit Authority’s insistence that her
life was worthless, not worth even a penny, Rachel’s death demanded a
substantial award (A-54).
7
The Authority parries—a mystery remains a mystery
The Authority countered that its operator hadn’t seen anyone in the
roadway, that no one had seen the bus brush against decedent, that to a large
degree the facts of the accident remained unexplained (A-61-62). The theory
plaintiff hinted at in opening, that the bus crowded the curb, before swerving
left, as it pulled out, hurling decedent into the roadway, made no sense; nothing
in the physical evidence, or in the words of any witnesses supported it (A-63,
67). And plaintiff would be unable to carry her burden proving that under the
relevant wrongful-death statutes she was entitled to damages (A-66).
The Highway Patrol Officer: photographing the scene and providing some important
measurements.
Police Officer Spiros Komis, who worked for Highway Patrol (A-72),
arrived at the site, to find decedent prone on the ground, face down, a blanket
covering her body (A-84). It was the middle of the day, 3:30 in the afternoon,
Sunday, October 29, 2006 (A-74). Decedent was lying in the southbound
service lane of the Henry Hudson Parkway, approximately 4-feet from the curb
(A-1031). Her head was pointed south, the direction the bus was headed, her
feet at a slant, positioned in a northeast direction (A-84).
Komis took a number of photographs of the accident’s landmarks.
Plaintiff’s 6A (A-1056) shows a view of the service road, looking south, and the
direction toward which the bus would be traveling (A-76). On the curb affixed
8
to a light pole (A-1056), are two signs: the top one noting that the Bx 10 and
Bx 20 stopped at the location; the other, positioned lower down, a schedule
listing the arrival and departure times of the two buses.
A number of other photographs, 6C, 6D, 6F, 6G (A-1058, 1059, 1061,
1062), show decedent lying in the roadway, face down, her head facing south,
her feet north (See also A-1041, autopsy photo, upper left; A-1050). Lining the
curb, was a thick carpet of fall foliage (A-1061).
Although one couldn’t detect it clearly from the photographs, a tire tread
ran over decedent’s back (A-87, A-1048). It continued onto the roadway,
approximately 4-feet from the curb, running north to south, marked out in
yellow chalk. (A-89, 91-92 A-1060).
The Authority’s Investigator, and how the Authority discovered the accident
According to Ramon Paez, an Authority investigator, the Authority first
learned that something had gone terribly wrong when a call arrived at
command center, suggesting that one of its buses might have struck a
pedestrian (A-528).
Paez informed the Public Transportation Board (A-528), and then
arranged for two buses that might have passed the accident site, to be hauled to
the Kingsbridge Depot (A-529). One bus was quickly ruled out, so Transit and
police investigators quickly focused on another—bus #8865:
9
With # 8665 in the depot, the inspection began. Investigators first
scrutinized the bus’s exterior, “…looking for any kind of contact with the
deceased, any blood, scrapes, fingerprints…anything to indicate if the bus came
in contact with the deceased…” (A-531). But they found nothing (A-532).
Hoisting the bus and inspecting the undercarriage
Proof that the bus had been involved in a fatality came a bit later, when
it was placed on a lift, and hoisted in the air. Detective Michael O’Connor, of
the Highway Patrol, noted tissue on the bus’s rear wheel (A-497, A-1047), while
forensic studies later revealed Ms. Levy’s DNA on the bus’s front wheels (A-
419-420; A-1043).
Inspecting the scene a day later
The next day, Paez left to inspect the scene of the accident, the
southbound service road of the Henry Hudson Parkway. There were still some
traces of the accident, including blood on the roadway (A-537). There were
leaves near the curb, but not as many as police officers at the scene the day
before had noted (A-1049). Those officers had also reported that there was
“puddling” (A-539) near the accident site, so Paez, drawing on those reports,
had included that fact in his report as well.
Seeking to discover information about the accident
Along with City police officers, Paez had handed out fliers (A-525),
seeking witnesses, but the canvass proved unsuccessful (A-525). Paez also
searched through the metro- card-database to find any of the passengers who’d
10
boarded at the 236th Street stop (A-535-536). But that search proved futile as
well. He was able to identify only one, who’d swiped with a senior discount
card. That passenger remembered nothing about any accident, either (A-536).
A flourish to the end of Paez’s direct testimony
Paez had also been part of an investigative team that in May of 2007,
nearly seven months after the October, 2006 accident had offered conclusions,
preliminary ones, about whether Brady, the driver, had complied with the
Authority’s own rules and standards. Under governing case law, the Authority’s
findings are not admissible, and before the trial began, the court had so ruled,
barring plaintiff from mentioning them at trial.
Plaintiff ignored the ruling:
Q: Now, with regard to your investigation with
regard to this incident that occurred on October 29,
2006, you along with the Office of System Safety
determined that Bus 8865 contributed to this
incident by failing to observe and identify the —
MS. MOORE: Objection.
THE COURT: Sustained. That's stricken, ladies
and gentlemen. You'll disregard that. That question
and answer is stricken. (A-526).
The bus driver’s account
Vincent Brady, the Authority driver, whose bus had run over decedent,
could offer little about the particulars of the accident, although he was able to
describe his general routine. On October 29, 2006, Brady was driving on the
Authority’s BX-10 line, a familiar one, one that he’d been operating on for
about 4-years (A-139).
11
Brady started work that Sunday at about 1 in the afternoon, the tour
ending at 10 in the evening (A-177-178). Before beginning his run, Brady
would inspect the bus to make sure it was ready to go. He’d look at the mirrors,
adjust them if they needed adjusting. And he’d tend to other portions of the
bus as well. (A-178).
The Bus’s Blind Spots
The mirrors would allow Brady to see around the bus, affording him a
view, at least a partial one, of the area on the side of the bus. Still, substantial
blind spots remained. The most prominent one extended down the outside
right side of the bus, “…10 feet back from the front door…” (A-180).
Pulling in and then pulling out of the 236th Street stop.
Brady recalled pulling into the 236th Stop sometime in the early
afternoon of October 29, 2006. He’d crossed the intersection at 236th, entering
the stop on the service road, a narrow one-way street, headed south (A-185).
Brady pulled in close to the curb, to allow passengers to board (A-186).
He thought one passenger boarded, although there might have been more (A-
186).
Brady then prepared to move out and merge into traffic to his left.
He described what he did. First, he looked into his right side mirror; he
saw nothing (A-188). He then checked the mirror on the left to see if it was
safe to pull out. There was traffic on the left (A-188). He swiveled to the right
again, checking the mirrors; he saw nothing (A-188-189). He closed the doors,
12
put on the left signal, looked in the left mirror again (A-189). Traffic had
cleared. He pulled out, proceeding into the left travel lane.
The entry into the lane was smooth and uneventful; Brady felt nothing,
heard nothing. No one on the bus—and there were perhaps 25 passengers—
said a word (A-147, 189).
Discovering decedent lying in the roadway and connecting the accident to Brady’s bus.
Brady would continue driving on his route, unaware that anything
untoward had happened. Later in the day, about 7 in the evening (A-192)
Authority supervisors contacted Brady and told him to drive to the
Kingsbridge Depot. It was there, the bus on a lift, that investigators found
evidence, ultimately confirmed by DNA testing, that Brady’s bus had run over
decedent (A-1043-1045).
Reconstructing the accident, plaintiff’s engineer explaining how the accident happened
and how the Authority was to blame.
Given the lack of eyewitnesses and Brady’s unawareness, plaintiff had to
draw on indirect proof to make out a case. She relied on an accident
reconstructionist to explain how the accident happened, and why Brady was to
blame.
Donald Phillips, plaintiff’s expert, was an engineer, practicing primarily
south of the Mason-Dixon line (A-564). To prepare for trial, he’d reviewed a
number of documents and photographs (A-565-566), and had visited the
accident scene in November of 2012, more than six years after Rachel Levy
13
died (A-568). At the site, he observed a number of buses, whose drivers
brought them close to the curb, as they pulled into the stop on the Henry
Hudson service road (A-1073, 1074).
Nearby stood a housing development, Briarcliff Manor (A-598-599),
which was in front, or south of the bus stop. Rachel Levy who had a client in
the development, had presumably finished work, and—according to what
Phillips assumed—was walking toward the stop to catch a bus home (A-599,
601). Phillips also examined the light pole at the end of the stop, noting that
only 15-inches separated it from the edge of the curb. See, A-585, A-1056.
Phillips told the jury what he thought could have happened. Decedent
had been sandwiched between the front of the bus and the pole. As the bus
pulled out, its front right corner, projecting over the curb, struck decedent,
propelling her into the roadway. Phillips explained:
…the body of the bus would have basically trapped
her body between that light pole and the front of the
bus and that's when the projection impact takes
place because she can't back up through the pole. So
when the corner of the bus hits her, it projects her
out into the road. That's when she gets run over (A-
630).
Ruling out other scenarios.
Brady, the bus driver, testified that blind spots extended 10 feet down
the bus’s right side, obscuring his vision of anyone approaching from the rear
right. But Phillips did not believe that the blind spots played a role in the
14
accident. If one assumed, as he did, that decedent was struck by the front of
the bus, projecting her forward, any natural obstruction, obscuring the driver’s
view of the right would have been irrelevant (A-605-606).
Was it possible that decedent had been coming from the rear of the bus
moving toward its front when the impact occurred? Phillips didn't think so. He
observed other people leaving the building development in front, or south of
the bus stop. All of them headed directly toward the front of the bus. If
decedent in fact had just been leaving the development, shortly before the
accident, it made no sense to think that she was coming up from the rear;
rather she was approaching directly from the front (A-601).
The Assumptions undergirding Phillips’s opinion
To arrive at his conclusion, Phillips had to make a number of
assumptions. He had to assume that Brady in 2006 pulled in at the exact spot
he’d seen a number of other drivers––three to be precise–– do in 2012, nearly
six years after the accident. There was reason to think that Phillips was wrong.
How the accident scene changed in the years between the accident and Phillips’s
inspection.
Phillips acknowledged that the accident site had changed between the
2006 accident and his 2012 inspection. Buses no longer stopped at the light
pole depicted in the photographs police took in 2006. In the interim, a new
pole, further south had been installed on the sidewalk, one marking the outer
boundary of the stop. See, A-1064.
15
Other gaps in Phillips’s conclusions
Phillips also thought that Ms. Levy was facing the bus when it struck
her. Yet he couldn’t explain how she wound up lying flat on her face, if the
force of the bus projected her forward.
Nor could Phillips convincingly account for the fact that the front of the
bus showed no sign of any contact with anyone, the absence of contact marks
all the more striking because the bus’s white color would naturally reflect any
evidence of a collision. A-631.
Plaintiff’s forensic evidence—Dr. Mark Taff, the forensic pathologist.
The lack of witnesses impacted the damages case as well. No one had
seen Rachel after the bus struck her. Consequently, plaintiff couldn’t offer any
direct proof that she exhibited any cognitive awareness, or that she’d
experienced any conscious pain and suffering.
Still, Plaintiff insisted she could show that decedent had endured some
period of consciousness, calling on the services of Mark Taff, a Nassau County
pathologist. Taff had worked as an M.E. in a number of jurisdictions, most
recently as chief medical examiner in Rockland County (A-316). And he’d
served as a consultant, testifying for an array of litigants, including the New
York City Transit Authority (A-330).
Taff concluded that decedent had been run over by a bus, and that she’d
died as a consequence. More importantly, Taff believed that not only could one
16
prove that decedent suffered conscious pain, but that one could also calculate
its duration (A-346).
A bus, Taff concluded, consumed time as it travelled over a distance. A-
347. Taff thought that a second or so would pass between the time decedent
realized the bus would run over her and when its front wheels actually crushed
her.
Death itself, he continued, wouldn’t be instantaneous.
Taff used two analogies to explain:
This is not an explosion where a person is vaporized.
It's a pedestrian motor vehicle accident. There is a
certain amount of time that's involved with these
cases before a person succumbs to all the injuries (A-
349).
Nor was it like a guillotine, “…where someone’s head is chopped off…”
with death following instantaneously (A-401). A second, perhaps two, perhaps
three would elapse before decedent would fade from consciousness.
Taff went on to offer a range: decedent would have endured anywhere
from 2-5 seconds of pre-impact terror and trauma related pain, the
consequence of the bus barreling toward her, running her over and crushing
her. (A-346).
The gaps in Taff’s case
Taff conceded that there were gaps in the proof that might undermine
his conclusions. The post-mortem was a limited one. The assistant medical
17
examiner had visually examined the body, but hadn’t done anything more.
Decedent’s family had refused an autopsy on religious grounds (A-361, A-
1021).
Taff’s earlier views on when one could or couldn’t reach justifiable conclusions
Taff insisted that his extensive experience and training—decades’
worth—would qualify him to offer estimates about decedent’s pain and
suffering. But in an earlier lawsuit, this time supporting the Authority’s motion
to dismiss another pain and suffering claim, he’d opted for a different tack.
The Authority had moved to dismiss a claim in a case entitled Keller v.
New York City Transit Auth. There, Taff thought that one couldn’t reach any
conclusion about whether a fatally injured pedestrian had suffered any
conscious pain, even though in Keller, plaintiff produced a witness who saw
the mortally injured decedent, gurgling and gasping for breath. (A-361).
Q: There was a witness who saw the decedent taking
his last breath or gasping for air; and in that case,
Doctor Taff, you opined that you could not, to a
reasonable degree of forensic pathological certainty,
determine if there was any duration of conscious
pain and suffering; yes or no?
A. Yes (A-359).
Taff tried to explain the difference. The decedent in Kessler may have
been gasping and struggling. But unlike decedent here, who suffered a
comminuted fractured skull, plaintiff there suffered only a closed head injury
(A-398-400).
18
The Medical Examiner’s conclusion on pain and suffering
Taff had insisted that, in reaching his conclusions, he’d relied in part on
the report authored by the Bronx County medical examiner Dr. Monica
Smiddey (A-679, A-1019). But Dr. Smiddey disagreed with Taff. She did not
believe one could tell how long decedent remained conscious after she was
struck.
Dr. Smiddey explained that because no one actually saw how Rachel
died, it was impossible to say how long decedent was conscious, or whether she
was conscious at all:
Because the decedent was found dead and
conscious pain and suffering is a determination that's
generally made by clinicians, nurses or doctors, EMS
who treat individuals who are victims of injuries and
there is some survival, either in an ambulance or in
an emergency room. (A-696)
Nor were there any studies that would allow to reach any conclusions
about the duration, if any, of decedent’s conscious awareness.
I know of no studies and I know of no
controlled studies that would actually determine
conscious pain and suffering in severe injuries (696).
Anyone who offered any views on how long after contact with the bus,
decedent had been conscious was simply speculating (A-698).
The Wrongful Death claims
Miriam Oates, pressing a claim for pecuniary losses stemming from her mother’s
death.
19
Miriam Levy Oates, decedent’s adult daughter, who was 33 when her
mother, Rachel died (A-203) recalled a relationship marked by closeness, but
one strained by distance and time.
Miriam had grown up in the Bronx, but in high-school, her mother sent
her out of state, where Miriam attended school in Rhode Island, Pennsylvania,
before completing her college studies in North Carolina (A-205).
Ms. Levy-Oates wound up attending Fayetteville State University (A-
208) in North Carolina, on a full scholarship. Her mother covered the costs the
scholarship did not, sending her $1500/month for her room and board (A-
208). Her mother would also call about once a week (A-209), while Ms. Levy
was in Fayetteville, a practice that continued -–if on a less intense basis—once
plaintiff married.
Plaintiff married straight out of college to a career member of the
military. Plaintiff’s husband led a peripatetic life, serving in Kosovo,
Afghanistan and other posts (A-210). Plaintiff had two small children to raise,
and her own job to attend to, which made it difficult to be intimately involved
in her mother’s life:
“I mean, I had kids to raise and a job to do…
(A-213).”
Financial aid from her mother ended once plaintiff left college, although
decedent continued to send care packages on occasion (A-256), and
20
contributed unspecified sums to her young grandchildren’s college fund (A-
244).
Still, the family, consisting of Mrs. Oates and her two young children,
would manage to get together with decedent two or three times a year during
the school break (A-213). And Ms. Oates relied on her mother’s counsel during
her husband’s absences. “…without my mother, I wouldn’t have a lot of
answers.” (A-210)
But distance frayed the connection between the two. Plaintiff was unable
to attend her mother’s fiftieth birthday (A-247), and was ignorant about many
of the particulars of her mother’s life. Plaintiff seemed unfamiliar about the
neighborhood her mother lived in (A-241), the particulars of her job search (A-
240), her work schedule (A-242), and her attendance at religious services (A-
239)
Rachel’s death and its effect on her mother, Haddassah
Hadasah Levy, decedent’s elderly mother, also sued to recover for
Rachel Levy’s wrongful death. Hadasah testified that her own health was less
than ideal:
I have obstructive sleep apnea, inflammation of the
spine, rheumatoid arthritis. I have a visual defect and
Pageant's (sic) Disease of the bone (A-293).
21
Her daughter, Rachel, who lived with her, would help Hadasah keep
track of medicine and also make sure that she didn’t miss any doctor’s
appointments.
As the illnesses escalated, I needed help with my
medication. She would keep them in order for me so
I would take them on time.
She also drove me to my doctors' appointments. She
assisted me many times I got ill and I had to be
rushed to emergency. She would drive me there. (A-
293)
Rachel helped with the household chores, lending a hand with the
cooking, cleaning and laundry. In Hadasah’s words:
…she was a great help to me. She was everything to
me. (A-294).
Still, although Rachel lived with her mother, the record was murky
whether she did so because she needed to take care of her or because she had
trouble living on her own. According to Hadasah, Rachel did try to live on her
own, but it didn't work out.
A. There was a time when she says Ma, I'd like to try
to get on my own. And she did leave for maybe two
months or so or a month but it didn't work out and
she came back home. (A-286)
Confirmation that Rachel had trouble coping on her own came from
Miriam Oates. Miriam testified that her mother was overjoyed because she’d
finally landed steady employment after years of transient and unstable work (A-
22
220-221). Plaintiff, in opening, also hinted at Rachel’s checkered work history
and her struggle to maintain her independence. (“Having been unemployed,
she had fallen behind in her bills” (A-31).
In any event, once Rachel died, her mother was not left utterly helpless.
Another daughter, despite her own personal commitments, would help out
when she could (A-294). Hadasah now relied on Access-a-Ride to ferry her
about. And she leaned on the Visiting Nurse Service to help her cope with her
medical ailments, and to, “…have my laundry taken care of and my
housekeeping, some, sort of, done,” including cleaning and cooking (A-294-
295, 298). The Nurses had come three times a week immediately after Rachel’s
death, and still showed up twice weekly.
How much in pecuniary damages had Hadasah sustained as a result of Rachel’s
death—the view of the two sides.
Plaintiff’s economist, Dr. Mattityahu Marcus (A-438), acknowledged that
Hadasah Levy wasn’t totally disabled, “…Hadasah Levy was still able to do
some of the cooking and some of the work herself…”(A-445). But she still
relied on Rachel to do perhaps half the housework, and to drive her to and
from her medical appointments.
23
How Marcus Calculated the Pecuniary Losses Hadasah suffered because of Rachel’s
death.
To evaluate the precise pecuniary loss Hadasah suffered, one would have
to,
“…ask ourselves how much would you have to pay,
not if a neighbor does it for you, not if a relative
does it for you, but if you had to buy on the market,
and this is the way we approach all economic losses
(A-442).
And to arrive at the replacement costs for such services, one would have
to examine two variables: the number of hours the decedent performed such
services, and the wage-dollars per hour it would take to hire a replacement.
According to U.S. government statistics, an average householder spends
25 hours a week on housework (see, A-445). Half of that weekly workload,
perhaps 12-hours, is what Marcus assumed Rachel carried. If one also assumed
that in addition to half the housework, Rachel would also spend a couple of
hours a week driving her mother around, one could reasonably conclude that
decedent contributed about 15-hours a week to her mother’s care. (A-445, lines
18-25).
Marcus continued. A Metropolitan Life Insurance study pegged the
wages of housekeepers at $16/hr. (A-446) Multiplying the hours Rachel
covered by the cost of hiring a replacement, Marcus reached the following
conclusions. Between the time of decedent’s 2006 death and the 2012 trial, the
24
value of Rachel’s custodial service amounted to $90,000, based on a yearly
expense of about $12,688 (A-448).
At trial, Hadasah Levy was 77-years old, and had a life expectancy of
about 9.5 years (A-449-450). Inflation had increased only modestly since
Rachel’s death, so factoring in a lower rate, Marcus assumed that replacement
costs for the duration of Hadasah’s life span would run about $14,470 yielding
a figure of about $149,000 (A-450). All in all, Hadasah, by his reckoning, had
lost $239,000 in pecuniary or custodial care damages when Rachel died. (A-
460.)1
Marcus conceded that in the years since the death, the Visiting Nurse
Service had tended to Hadasah, providing anywhere from 4-6 hours of service
a week. But he thought the services were not comparable to what Hadasah had
been getting from Rachel, and refused to factor it in (A-477-478).
The Authority’s expert—tracking Marcus’s methodology but arriving at a more
modest estimate.
Dr. Leonard Friefelder, the Authority’s economist, largely tracked Dr.
Marcus’s methodology, although he’d ultimately conclude that Marcus’s
numbers were too high. Freifelder thought that Rachel would spend 11-13
hours a week on housework:
Basically, I agree with Dr. Marcus that the types of
services that Rachel Levy was performing, household
1 The loss would increase if the jury thought that Rachel did more than half the
housework (A‐451).
25
services she was performing for her mother, would
take twelve or thirteen hours a week to perform. I
agree with that (A-777).
But, contrary to Marcus, he assumed that the 11-13 hours of household
services already accounted for driving time:
I used, the Dollar Value of the Day, the household
service, the household production activities includes
transportation, it includes the fact that to do some of
these services, particularly things like shopping or
even things like laundry, you may have to actually
drive somewhere or go somewhere…(A-778)
What Dr. Marcus had done was to, “… have double counted the transportation
component of the services that Rachel Levy was providing to her mother” (A-
778).
Friefelder also thought that Marcus was too high in assessing the
replacement costs of household help. Rather than the $15/hr figure that
Marcus assumed, Freefell drawing on a federal government compilation
thought that $12.23 made more sense (A-774).
Based on his calculations, Freifelder said that plaintiff would have lost
approximately $53,000 for the years between Rachel’s death and the trial, and
$77,141.00 for future losses covering the remaining years of Hadasah’s life
expectancy, yielding a sum of $130,000 (A-774-775).
But Freifelder made a critical point. All his calculations rested on two
assumptions: the first, that Hadasah was actually paying for the services
26
decedent had performed gratis; the second, that the Visiting Nurse service and
Access-a-Ride fell short of providing the spectrum of services Rachel had
provided. But if these assumptions proved false, if, “…Hadasah Levy is able to
get those service from her [other living] daughter, through Access-A-Ride
through the Visiting Nurse Service and she doesn’t have to pay for that, then
she hasn’t sustained a loss of household services” (A-779).
The Authority’s motions
At the close of plaintiff’s case (A-674), and at the close of all the
evidence (A-879), the Authority moved for judgment as a matter of law.
Plaintiff may have proven that the bus made contact with decedent. But
plaintiff couldn’t prove that Brady the driver was guilty of negligence. She
couldn’t prove where decedent was immediately before the accident, what the
driver should have seen, or whether he could have prevented the accident.
Plaintiff’s damages case, especially the pain and suffering claim, was
equally suspect. Taff, who thought that Rachel survived for 2-5 seconds,
offered nothing but a long resume to support his conclusion, a conclusion
belied by his testimony in an earlier case where he insisted that one couldn’t
conclude that a person with a skull fracture, wheezing and gasping for breath,
was cognitively aware, consciously suffering any pain (A-648).
27
Plaintiff countered that her two experts established both the Authority’s
negligence and decedent’s pain and suffering. The trial court denied the
Authority’s motion and the parties proceeded to summation.
Plaintiff sums up.
Plaintiff told the jury that she had to restrain herself when she heard the
“inaccuracies” the Authority was peddling to the jury (A-914). Everyone knew
that the bus driver killed decedent. So why are we here? Because the driver,
“…kills her and leaves her to die like worthless roadkill.” (A-917).
The Authority not only disclaimed responsibility for the accident, it
declared that decedent’s life wasn’t worth anything, that she suffered no pain
while the bus split her head open (A-941).
The Authority also cast aspersions on decedent’s family accusing them
of being bad Jews (A-935), that they’d deliberately refused an autopsy, not out
of religious conviction but to hide incriminating evidence.
Moving for a Mistrial
As it had done before (A-879), defendant moved for a mistrial. Plaintiff’s
comments were inflammatory and prejudicial, tracking comments plaintiff had
made earlier (A-936). The Court chided plaintiff’s counsel, in chambers, and
summations continued.
Plaintiff concluded by demanding that the jury award Hadasah no less
the $239,000 calculation Dr Marcus offered (A-948); that it award Miriam,
28
$500,000 for loss of past and future guidance, and that it return with an award
of no less than $350,000 for decedent’s pain and suffering (A-948-950).
29
The Jury’s verdict
After finding the Authority negligent, the jury returned the following
awards (A-999-1002):
Hadasah Levy, for the loss of her daughter’s custodial services: past
damages, $150,000; future damages, $400,000;
Rachel Levy, conscious pain and suffering, $300,000;
Miriam Levy Oates, past pecuniary losses, $0;
Future pecuniary losses, $100,000.
Plaintiff entered judgment on the verdict, and this appeal followed.
30
ARGUMENT
POINT I
PLAINTIFF FAILED TO PROVE THAT
THE DRIVER WAS GUILTY OF
NEGLIGENCE. EVEN AIDED BY THE
LESSER NOSEWORTHY BURDEN,
PLAINTIFF FAILED TO MAKE OUT A
CASE.
When plaintiff opened, she confidently promised she would prove that
the bus-operator-Brady maneuvered the chassis of his bus over the curb,
knocked decedent off her feet, propelling her into the roadway, where he
promptly drove over her, before callously speeding away.
Plaintiff may have proven that the bus came in contact with decedent.
But she failed to prove that the driver acted negligently, a failure that should
persuade this Court to dismiss the suit.
Wank v. Ambrosino, the key case
As the cases inform us, a plaintiff who proves that he was struck by a
vehicle proves only half a case. For plaintiff to prevail, she must also prove that
the driver acted negligently, that had she exercised reasonable care, she should
have avoided the accident.
Wank v. Ambrosino, 307 NY 321 (1954) stands as the paradigm case.
There, defendant driver struck decedent, but denied that he’d ever seen
anything. The evidence revealed that the driver had stopped his car at a red
31
light, preparing to make a right turn. The light turned green, the driver turned,
proceeding slowly into the street.
Fifty feet into the intersection, the driver heard a bump, left the car,
checked his tires, but found nothing. He started the car again. He heard a noise
again. He got out again. This time, he found a body underneath, its head
pointing toward the front of the car, the feet to the rear.
Defendant driver insisted that he hadn’t seen decedent before contact,
despite the fact the street was well lit. Although drag marks of 170-feet marred
the roadway’s surface, no one saw the car strike the pedestrian.
At the close of plaintiff’s case, the trial court dismissed the suit, a
decision the Appellate Division and the Court of Appeals affirmed. Perhaps a
jury could conclude that the driver’s car struck decedent. But proving contact
got plaintiff only so far. Plaintiff also had to show that defendant was guilty of
negligence. But plaintiff couldn’t make that showing:
An inference could be justified that
defendants' car hit the man, but, since there is
nothing at all to show how that came about, there is
nothing on which to base a finding of negligent
causation. 307 NY at 323.
Mehra v. Bentz, 529 F.2d 1137 (2nd Cir. 1975), interpreting New York law,
fortifies the point. Plaintiff there sued the driver of a car that struck decedent.
The car driver had been driving along a deserted country road during the night,
when he heard a thud, which shattered his windshield. The driver slowly
32
stopped, flagged down two men, who after investigating, found a body lying in
the roadway.
The District Court dismissed the suit, relying on Wank, supra, and the
Second Circuit affirmed. Plaintiff may have succeeded in proving that
defendant’s car struck decedent. But that was not enough. Plaintiff was also
required to prove that the driver could have spotted decedent on the road, and
that his failure to do so, and to stop in time, amounted to negligence.
Trillo v. Gerry, 135 A.D.2d 625 (2nd Dept. 1987), which dismissed a suit
brought by a pedestrian against a driver, summarized the rule: a plaintiff who
proved that defendant’s vehicle struck him had proven only half a case:
While the evidence established that there was
physical contact between the plaintiff Federeco
Trillo and the left side of the defendant's vehicle
toward the rear, there was no evidence that the
defendant had committed any negligent acts.
These cases compel an obvious conclusion. Because plaintiff failed to prove
that the bus operator could have spotted decedent, or even if he could, that he
could have acted in time to avoid the accident, the suit should be dismissed.
Consider the following:
We know nothing directly about the facts of the accident— so we
have no idea where precisely decedent was when she fell under
the bus; her distance from it, the angle she approached it—
33
anything that would allow us to reach a fact-based conclusion that
the accident could have been avoided.
If we view matters from the bus operator’s perspective,
plaintiff’s case does not improve either. The driver denied seeing
anyone in the roadway as he pulled out of the stop. The sole
passenger one could identify, added nothing of import either. He
hadn’t heard a thump, and thought there was nothing unusual, as
the bus continued on Henry Hudson Parkway.
If anything, plaintiff’s suit here fares worse that the suit
brought in Wank, There, the offending driver stopped his vehicle
shortly after he struck decedent, allowing one to retrace the
vehicle’s path. Here, by contrast, the bus’s connection to the
accident was discovered much later in the day, making it difficult
to reconstruct both the bus’s movements at the scene, and the
driver’s alleged failure to exercise care.
Plaintiff here also comes off second best to the plaintiff in
Mehra who was again able to link the sound of a thump and a
broken windshield to the vehicle’s driver, but was unable to prove
that the driver acted negligently.
34
Noseworthy offers plaintiff no aid
Plaintiff can be expected to counter that because she is pursuing a
wrongful death claim, she labors under a lesser burden of proof. See, Noseworthy
v City of New York, 298 NY 76 (1948). Consequently, her suit was strong
enough to go to the jury even where another, brought on behalf of a plaintiff
who survived might not.
Wank, itself refutes that argument. The plaintiff in Wank raised the same
point. Under Nosworthy, she was entitled to prevail, given that she labored under
a lesser burden. The Court of Appeals disagreed. Before plaintiff could invoke
Nosworthy, she was bound to provide some independent evidence of negligence:
True it is that "in a death case a plaintiff is not
held to as high a degree of proof of the cause of
action as where an injured plaintiff can himself
describe the occurrence" (Noseworthy v. City of New
York, 298 N.Y. 76, 80) but before that rule comes
into play there must be some showing of negligence,
however slight. At 307 NY 323, 324.
Plaintiff didn’t make that showing in Wank, and plaintiff didn’t make it
here either.
Another expected counterattack—plaintiff’s expert and the opinions he offered on the
accident’s cause and the bus driver’s
Plaintiff will doubtless point to his expert, Mr. Phillips, the engineer, to
argue if the jury believed his reconstruction of the accident, they were free to
conclude that the Authority was negligent. But Phillips’s opinion was no
stronger than the facts and assumption on which it rested. As the cases inform
35
us, an expert who offers only his bare conclusions about the cause of an
accident, cannot create a genuine issue of fact (v Cotter v Pal & Lee Inc, 86
A.D.3d 463 [1st Dept. 2011]).
So, just as in Doomes v Best Tr. Corp., 17 N.Y.3d 594 (2011), where the
Court of Appeals dismissed a suit, in part, because it found that plaintiff’s
expert offered opinions that “…were conclusory and based on speculative data
that failed to establish a causal relationship to the accident (see Cotter v Pal &
Lee, Inc., 86 AD3d 463, 466-467, 928 NYS2d 262 [1st Dept 2011])”… so, too,
here. Phillips’ views rest on a base of speculation and conjecture; they cannot
show how the accident happened, let alone how the driver is supposed to have
been negligent.
Consider what Phillips had to assume in order to blame Brady for the
accident. First, he had to suppose that decedent was already in the bus stop
facing the bus, when it started to pull out. The evidence for that assumption
was weak and unpersuasive. For all the evidence reveals, decedent arrived at the
stop, after the bus pulled out, and fell as she chased after it.
Phillips also assumed that the bus sidled up to the curb, confining
decedent in the 15-inch space between itself and the light pole. Again, these
conclusions are speculative. Phillips believed that because he’d seen a number
of buses stop close to the curb in 2012, Brady must have done the same in
2006. The conclusion does not follow from its premise.
36
Equally untenable, is Phillips’s corollary assumption that decedent was
“trapped” in the 15-inch gap. Shift the landmarks by a few inches, and the
scenario collapses. So, if the bus stops 3 inches south of the pole, if decedent
shifts her position 2 or 3-inches to the north, if the bus stops 3-inches from
the curb, the elaborately constructed hypothetical, sandwiching decedent in a
15-inch prison evaporates.
And also unaccounted for in Phillips’s reconstruction is how decedent
wound up face down, rather than on her back, and why no one at the stop, on
the bus, or on the sidewalk noticed or heard anything.
In short, Phillips’s unwarranted assumptions and his far-fetched
scenarios only highlight the weaknesses in plaintiff’s case. Nothing that Phillips
said can save plaintiff’s case.
37
POINT II
PLAINTIFF FAILED TO PROVE THAT
DECEDENT ENDURED ANY CONSCIOUS
PAIN AND SUFFERING. THE CLAIM
SHOULD BE DISMISSED. IN ANY EVENT,
THE $300,000 AWARD FOR DECEDENT’S 2-
5 SECOND OF PAIN AND SUFFERING
DEVIATES MATERIALLY FROM
REASONABLE COMPENSATION.
Under EPTL 11.3.3 (a), plaintiff was entitled to recover for the
conscious pain decedent suffered as a result of the Authority’s negligence. But
to prevail, plaintiff bore the burden of proving—by a preponderance of the
evidence—both that decedent was conscious, and the length of time such
consciousness endured. On both counts plaintiff failed.
Plaintiff and the burden of proving that decedent was conscious.
As the cases inform us, for plaintiff to recover, she must prove that
decedent was cognitively aware between the time the bus struck and the time
she died (“…cognitive awareness is a prerequisite to recovery" for pain and
suffering on behalf of a decedent. McDougald v. Garber, 73 N.Y.2d 246, 255
[1989]).
Further, while plaintiff may rely on circumstantial evidence to prove
decedent’s awareness,2 the Courts have repeatedly dismissed suits where a
2 Espinal v Vargas, 101 A.D.3d 1072 (2nd Dept. 2012) {Decedent’s moaning and groaning
enough to establish a case for pain and suffering}.
38
particular plaintiff failed to offer credible proof establishing such
consciousness.
Fiederlein v. New York City Health & Hospitals Corp., 56 N.Y.2d 573, 574
(1982), illustrates the point. There, plaintiff’s son, a psychiatric patient was
allowed to leave the hospital on a pass. He was later found floating in the
Hudson, dead, an apparent suicide. Plaintiff, decedent’s father, sued for his
son’s pain and suffering, but the Court of Appeals dismissed the claim. “Mere
conjecture, surmise or speculation…” was all plaintiff offered to support the
claim that decedent endured conscious pain and suffering. Lacking credible
proof, the claim couldn’t stand. It had to be dismissed.
Cummins v. County of Onondaga, 84 NY2d 322 (1994) once again applies
these principles. Decedent was driving an automobile that veered off a road,
before coming to rest in a body of water next to the roadway. Plaintiff sued to
recover for decedent’s pain and suffering, blaming the County for failing to
maintain the roadway.
The proof at trial showed that that decedent’s car had been traveling at
45-mph when it spun out of control, landing in the water. 10 minutes later,
rescue personnel recovered the body, but decedent showed no vital signs. They
tried to revive her but failed. The jury credited plaintiff’s assertions that
decedent had survived for a period, awarding plaintiff $400,000 in
compensation for decedent’s conscious pain.
39
The Court of Appeals reversed and dismissed. Plaintiff’s case rested on a
base of speculation and surmise. Plaintiff hadn’t presented “…legally sufficient
proof of consciousness…” 84 NY 2d 324. Consequently, plaintiff hadn’t
carried her burden of proof.
Other cases also follow the Court of Appeals’ lead, dismissing suits
where plaintiff failed to prove that a person was aware enough after an accident
to experience pain.
In Delosovic v. City of New York, 143 Misc.2d 801, 812 (Sup. Ct. NY Cty.
1989), aff’d 174 A.D.2d 407 (1st Dept. 1991), decedent was crushed by a truck
and died. Plaintiff argued that that, “…in the flash between contact and
[death]…” decedent suffered excruciating pain. The trial Court dismissed the
action, and the Appellate Division affirmed.
A Federal Court, drawing on New York Law, makes the same point,
albeit indirectly. The issue in Matter of Adler, 869 F. Supp. 1021 (EDNY 1994)
was whether a settlement reached in a lawsuit should be allocated to the
wrongful death action, or the pain and suffering claim. A cause of action for
pain and suffering is part of the decedent’s estate. If the government could
show that part of the settlement covered pain and suffering, it could demand
that portion be subject to Estate taxes.
Decedent in Adler died when he was struck by an automobile. He was
carried 70-feet on the car’s hood, before he was tossed into a ditch. Witnesses
40
at the scene testified that he was unresponsive, and he was declared dead, about
a half-hour later.
After the suit was settled, the government insisted that part of the
settlement covered the claim for pain and suffering, so that it was entitled to
estate taxes, but the District Court disagreed. The evidence failed to establish
that decedent suffered any conscious pain. Under New York Law:
"cognitive awareness is a prerequisite to
recovery" for pain and suffering on behalf of a
decedent. McDougald v. Garber, 73 N.Y.2d 246, 255,
538 N.Y.S.2d 937, 940, 536 N.E.2d 372 (1989).
Given that failure, the settlement could not have covered any claim for
pain and suffering. The Government wasn’t entitled to a tax.
Other cases reach similar conclusions. Plaintiff couldn’t prove that
decedent, in Kevra v. Vladagin, 96 A.D.3d 805 (2nd Dept. 2012) suffered any
conscious pain. Decedent was riding in a car, which flipped onto its side and
crashed into a tree. The crash occurred at 8 p.m., and the medical examiner
declared decedent dead nearly an hour and a half later.
The Appellate Division dismissed the claim. Defendants carried their
burden by proving that during the nearly 90 minutes between the crash and the
official time of death, decedent made no sound or movement, and did not
appear to be breathing.
41
See also Phiri v. Joseph, 32 A.D.3d. 922 (2nd Dept. 2006) {Dismissing pain
and suffering claim where no one saw decedent move or make any sounds after
he was struck by bus, and where the Court concludes that any claim that
decedent’s pre-impact terror claim was speculative.}
Ferguson v. City of New York, 73 A.D.3d 649 (1st Dept. 2010) {Dismissing
$3,000,000 pain and suffering award for decedent shot by police officer, where
death was almost instantaneous};
Public Adm'r of Kings County v. U.S. Fleet Leasing, Inc., 159 A.D.2d 331 (1st
Dept. 1990) {No evidence that plaintiff was conscious or aware after he was
struck by automobile; pain and suffering claim dismissed}.
Zurita v. McGinnis, 7 A.D.3d. 618 (2nd Dept. 2004) {Pedestrian struck by
defendant’s vehicle. Pain and suffering award dismissed because plaintiff
offered no proof, that decedent, “…cried out, spoke, or made intentional
movements following the impact of McGinnis's vehicle…”
Here, the failings of plaintiff’s case on pain and suffering stand out even
more prominently. No one saw anything. No one can say what decedent knew,
whether she sensed that the bus was approaching, whether she feared imminent
catastrophe, or whether she was simply oblivious to her surroundings.
Our ignorance extends to decedent’s condition after the bus struck her.
Once again, no one can offer a hint of how decedent reacted, whether she
42
gasped for air, whether she cried out in pain, or whether she lapsed into
unconsciousness instantly.
An expected rejoinder—Dr. Taff, as establishing the case for conscious pain and
suffering.
Plaintiff will doubtless counter that unlike the plaintiffs in the earlier
cited cases, here, she offered the words of an expert, Dr. Taff, to make out a
case. Couldn’t the jury credit Taff and conclude that Rachel Levy endured 2-5
seconds of pain before she lost consciousness? They couldn’t for the following
reasons.
For his conclusions to count as competent, Taff had to draw on the
evidence in the record, or established scientific or medical principles. See,
generally, Caton v. Doug Urban Construction Co., 65 NY2d 909 (1985); Romano v.
Stanley, 90 NY2d 444 (1997); Dibble v. NYCTA, 76 A.D.3d 272 (1st Dept. 2010).
Taff’s conclusions drew on nothing other than his resume. It assumed that any
victim of a motor vehicle accident would perforce endure pain and suffering,
and assumed further that unless one was vaporized in an explosion or lost
one’s head to a guillotine, one would always possess sufficient awareness to
suffer some degree of pain.
These conclusions run counter to both common-sense and case law.
They cannot be reconciled with Ferguson v. City of New York, supra, where the
Court ruled that a gunshot victim who died “nearly instantaneously” wasn’t
entitled to recover any damages for pain and suffering. And they cannot be
43
reconciled with Wank, which implicitly rejects Taff’s premise that all
pedestrians struck by motor vehicles, inevitably suffer some degree of
conscious pain.
The $300,000 award for 2-5 seconds of pain and suffering is excessive.
But regardless of whether plaintiff made out a case for decedent’s pain
and suffering, the award, measured against what Courts have sustained for pain
and suffering of relatively short duration, deviates materially from reasonable
compensation (See CPLR 5501(c) Donlon v. City of New York, 284 A.D.2d 13 [1st
Dept. 2001])
Consider the following typical awards for longer periods of suffering:
Ramos v. La Montana Moving & Storage, Inc., 247 A.D.2d 333 (1st Dept.
1998) {$900,00 for fifteen to thirty minutes of “excruciating crushing
injuries.”}
Glaser v. City of Orange, 54 A.D.3d 997, 864 N.Y.S.2d 557 (2nd Dept 2008)
{$1,000,000 award reduced to $350,000; 2-3 minutes of pain and
suffering};
Fa-Shun Ou v. N.Y. City Transit Auth., 309 A.D.2d 781 (2nd Dep't 2003)
{decedent, run over by a bus; conscious for 40 minutes or so} (see Fa-
Shun Ou Appendix, p. 32). The Appellate Court affirmed a pain and
suffering award of $365,000.
44
Santana v. DeJesus, 110 A.D.3d 561 (1st Dept. 2013) {25 seconds of pain
and suffering; $875,000 award, held to deviate from reasonable
compensation; reduced to $375,000. 3
Though some of these cases treat longer periods of pain and suffering,
they remain suggestive. They demonstrate why, even under the most generous
standard, the $300,000 award for 2-5 seconds of pain and suffering cannot be
sustained.
3 See, Appellants’ appendix, A‐624.
45
POINT III
UNDER EPTL 5.4.3, ONLY A DISTRIBUTEE
MAY RECOVER DAMAGES FOR
WRONGFUL DEATH. DECEDENT,
RACHEL LEVY WAS SURVIVED BY HER
MOTHER, HADASAH AND DAUGHTER,
MIRIAM. EPTL 4.1.1 PROVIDES THAT
WHERE A PERSON IS SURVIVED BY A
CHILD AND A PARENT, THE CHILD IS
THE SOLE DISTRIBUTEE. IT FOLLOWS
THAT THE AWARD THE JURY MADE TO
DECEDENT’S MOTHER CANNOT STAND.
AND THE COURT CAN CONSIDER THE
AUTHORITY’S ARGUMENT, EVEN
THOUGH IT WENT UNPRESERVED
BELOW.
The jury awarded Hadasah Levy, decedent’s mother $500,000 for the
pecuniary losses she sustained when her daughter, Rachel died. But Hadasah
was not entitled to any damages whatsoever.
New York’s Cause of action for Wrongful Death, Strictly Statutory
As the Court of Appeals emphasized in Hernandez v. New York City Health
& Hospitals, Corp., 78 NY2d 687, 692 (1991), an action for wrongful death is a
creature of statute.
The wrongful death cause of action in New
York is exclusively statutory…We have no common-
law cause of action for wrongful death (see, Ratka v
St. Francis Hosp., 44 NY2d 604, 612, supra).
The Estates Property and Trusts Law (EPTL), outlines both the type of
damages one may recover for wrongful death, and the parties who may recover
46
them. Carter v. New York City Health & Hosps. Corp., 47 A.D.3d 661 (1st Dept.
2008).
Under EPTL §5-4.1, a decedent’s personal administrator may sue to
recover pecuniary losses suffered by the decedent’s distributees. §5-4.4 makes the
point explicitly. Damages for wrongful death, “…are exclusively for the benefit
of the decedent's distributees…”
Who are Distributees?
A distributee, EPTL §1-2.5 informs us, “…is a person entitled to take
or share in the property of a decedent under the statutes governing descent and
distribution.”
The laws governing descent are outlined in EPTL §4-1.1. Under
subdivision (a) (3), where a decedent leaves as survivors, “issue and no spouse,”
the entire distribution descends to the “issue.”4 Surviving parents do not count
as distributees; consequently, they get nothing. They have no standing to
pursue a wrongful death action for the death of their children:
“…a parent of a decedent would take nothing if the decedent left a
spouse and issue, or a spouse and no issue, or issue only and no spouse.” 231 NY
Jur. Death, § 249.
In re Estate of Thayer, 1 Misc. 3d 791 (Surr. Ct. Madison 2003) makes the
point, if indirectly. There, decedent, who never married, apparently left a
4 “…the descendants in any degree from a common ancestor.” See, EPTL§1-2.10 (a)(1)
47
surviving child, a daughter, born after his death. Decedent’s girlfriend
petitioned to have the Court declare decedent the father of the child, thereby
entitling the infant to a share in a wrongful-death settlement.
Although decedent’s parents concurred that the child was decedent’s, the
Court insisted that they provide adequate proof of paternity (“…Despite the
parties' unanimity, the court must be satisfied that the proof adduced is
sufficient to satisfy the statute.” In Re Thayer at 792). Having satisfied itself of
the child’s paternity, the court granted the application, ruling, “… that Joshua
[i.e. decedent] is Melanie's father, thus entitling Melanie to be the sole recipient of
the proceeds of a settlement in a wrongful death action…” at 793.
Cf. also, Pizzuto v. County of Nassau, 240 F. Supp. 2d 203 (EDNY 2003)
Applying the plain meaning of the Statute
In a number of cases, the Courts have drawn on §4.1.1’s words to bar
close relatives of a decedent from recovering wrongful death damages, even
those that relied on decedent for their support. Failing to qualify as distributees,
their dependence made no difference.
For example, in Carter v. New York City Health & Hosps. Corp., supra, a
jury awarded decedent’s grandchildren damages stemming from their
grandmother’s death. The grandmother, though, had children of her own, nine
of them, who were still alive.
48
The Court held that the grandchildren were entitled to nothing. Under
the laws of intestacy, the grandmother’s children qualified as distributees; the
grandchildren did not. The grandchildren could not recover.
Morico v. Green Bus Lines, Inc., 429 F. Supp. 23 (EDNY 1997), applying
New York Law makes the same point. Plaintiff, there, brought an action to
recover for the wrongful-death of his son. As a distributee, plaintiff-father had
the right to bring the action, but he insisted that the jury be told that decedent’s
siblings relied on decedent for financial support, and were entitled to be
compensated as well.
The Court disagreed. It may have been true that decedent supported his
siblings; but under the EPTL, only their father, not they, qualified as a
distributee. Hence, they were not entitled to recover:
These damages. … "are exclusively for the
benefit of the decedent's distributees," id. § 5-4.4,
who are in this case the decedent's parents. Id., § 4-
1.1(a)(3). Proof regarding the dependency of
brothers and sisters is inadmissible. It therefore
would have been improper for the jury to consider
any pecuniary loss to the decedent's brothers and
sisters...
The conclusion that follows here is plain. Hadasah Levy, decedent’s
mother does not qualify as a distributee. Only Miriam Levy-Oates, decedent’s
daughter, does. The jury lacked the power to award Rachel’s mother anything.
49
Why the Court should consider the point, even though the Authority failed to preserve
it.
At this point, plaintiff will doubtless argue that the Authority has
surrendered the right to challenge Hadasah’s award, by failing to raise the point
at trial.
It is true that a party who fails to object when its adversary raises a
meritless legal theory will have waived the right to challenge the issue on
appeal. But not always.
An error may be so fundamental, that an appellate court will entertain it,
overlooking a litigant’s lapse at trial. Clark v. Interlaken Owners, Inc., 2 A.D.3d
338, 340 (1st Dept. 2003). Where an error tends to, “ ‘… confuse[ or] create[ ]
doubt as to the principle of law to be applied"’ [Aragon v A & L Refrig. Corp.,
209 AD2d 268, 269, ] it ranks as fundamental.
The error here ranks as fundamental in the profoundest sense. Not only
does it confound or confuse governing law; it positively renounces it. Hadasah
Levy is not a distributee. The EPTL bars her from recovering wrongful-death-
damages. Yet because of the Authority’s lapse, plaintiff is able to stand the
statute on its head. A person the law regards as a stranger, winds up recovering
the lion’s share of the wrongful-death-damages.
The policies that bar a litigant from raising an unpreserved error.
Courts bar parties from raising unpreserved errors, in part, because they
fear litigants will game the system. A litigant unsure of whether he will prevail
50
at trial can decide to gamble. He may refrain from objecting when he should,
allow an objectionable piece of evidence to go to the jury, and then wait. If the
jury returns a favorable verdict, fine. If it doesn’t, he may then raise the error
on appeal and hope for a reversal. 5 See, People v. Dekle, 56 N.Y.2d 835, 837
(1982).
Here, the Authority did not engage in any gamesmanship. It remained
silent when Hadasah pressed her wrongful death claim not because it hedged
its bets. It kept quiet because it made a mistake, a circumstance that persuaded
one court to review an unpreserved error. See, Peguero v. 601 Realty Corp., 58
A.D.3d 556, 564 (1st Dept. 2009){Court considers unpreserved error where
“[Counsel’s lapse] represented nothing more than an omission that was
inadvertent or ignorant…”}
In assessing whether the Authority should be given the chance to
champion a settled principle of New York Law, the Court should also measure
the Authority’s culpability in relation to the culpability of the other trial actors.
If the Authority was unaware that Hadasah failed to qualify as a pecuniary
beneficiary, so was plaintiff. And so was the trial court. Given that all the
5 “Without a preservation rule, a trial attorney might intentionally keep quiet about
an error with the hope of using it, in the event of a loss at trial, as a basis for reversal
on appeal.” APPELLATE REVIEW OF UNPRESERVED QUESTIONS IN CRIMINAL
CASES: AN ATTEMPT TO DEFINE THE INTERESTS OF JUSTICE, THE JOURNAL OF
APPELLATE PRACTICE AND PROCESS Vol. 11, No. 2 (Fall 2010) CUNNINGHAM,
51
participants were covered in a veil of ignorance, why penalize only the
Authority?
Finally, Courts insist that a party object, so that its adversary may have
the opportunity to explain why the ruling or proof was proper, or, if it was not,
why he should be allowed a chance to take corrective measures so that the
evidence can gain admission. But where the theory, or evidence cannot be
considered under any view, a Court should consider an error, even though it
hasn’t been preserved.
Here, too, Peguero is instructive. The Court explained that it would
consider an unpreserved error, because the appellant’s adversary couldn’t prove
that a timely objection would have made a difference. (“…it [is] unlikely that
plaintiffs could have responded to a specific objection by offering additional
evidence against Jeffrey Farkas that would have established a proper basis for
holding him personally liable…”).
In short, where appropriate, this Court has reviewed unpreserved errors
where the interests of justice demanded it. See, Clark v. Interlaken Owners, Inc., 2
A.D.3d 338 [1st Dept. 2003] {Reviewing unpreserved error, where trial court
mistakenly charges that 2-year old may have assumed the risk of injury}. Santos
v National Retail Transp., Inc., 87 A.D.3d 418 [1st Dept. 2011] {Considering
charge error though unpreserved, where the error was fundamental}. The
Court should do the same here.
52
The $550,000 award to cover Hadasah’s pecuniary losses is excessive
If the Court remains disinclined to dismiss Hadasah’s award outright, it
should nevertheless cut it, and cut it sharply. The award exceeds reasonable
compensation—and materially so. The jury awarded Hadasah $150,000 for the
pecuniary damages she suffered between her daughter’s death in 2006 and the
date of trial. It also awarded her $400,000 for future losses, spanning the 9-
years of Hadasah’s life expectancy.
Under this calculus, the jury valued decedent’s household services at
$30,000/year in the period before trial, and more than $40,000/year after it.
But no one at trial, not the Authority’s economist, not plaintiff’s, assessed
decedent’s services so high. Any verdict that rests on these inflated calculations
cannot stand.
Awarding damages for loss of household services—the applicable standard
A jury may award pecuniary damages for the death of a person
performing household services (see, DeLong v. County of Erie, 60 NY2d 296
[1983]) As the Court of Appeals explained in DeLong, the replacement cost of a
relative, or spouse, who performed custodial or household services, falls under
the pecuniary loss umbrella:
When the decedent is a housewife who is not
employed outside the home the financial impact on
the survivors, aside from compensable losses of a
personal nature (see, e.g., Tilley v Hudson Riv. R. R.
Co., 24 NY 471), will not involve a loss of income
but increased expenditures [**723] to continue the
53
services she was providing or would have provided if
she had lived.
At 307.
But Hadasah’s award falters on several grounds. First, Hadasah failed to
prove that she’d ever expended any funds to cover the services her daughter
provided. Absent proof that she’d incurred such expenses, she was not entitled
to recover (see, Berrios v. 735 Avenue of the Americas, 103 A.D.3d 472 [1st Dept.
2013] {Holding that as a sine-qua-non to pressing a claim for future household
services, a plaintiff would have to prove the expenses he incurred or intended
to incur}.
Second, while it is undoubtedly true that Rachel did housework for her
mother and also drove her to the doctor, the relationship was not one-sided.
Hadasah provided Rachel a home, no small matter, given that Rachel had never
lived independently, that she’d been employed only sporadically, and that
plaintiff’s counsel in opening conceded she had trouble paying her bills. Put
differently, on this record, it is impossible to say that Rachel provided Hadasah
with a net pecuniary benefit.
Finally, Dr. Marcus, who set out a best-case scenario, thought that
Hadasah’s pecuniary loss was far smaller than the inflated verdict the jury
returned. Indeed, to arrive at the award it did, the jury would have to reach
either one of two conclusions:
That Rachel did all, not half, of the housework;
54
That the cost or obtaining replacement help was twice what
plaintiff’s own expert estimated.
Neither conclusion is tenable.
The Evidence of case-law
Once again, representative awards highlight the excessiveness of the
award here.
See, e.g., Merola v. Catholic Med. Ctr. of Brooklyn & Queens, Inc., 24 A.D.3d
629 (2nd Dept. 2005) {Reducing $250,000 award for husband’s loss of wife’s
housekeeping services to $50,000};
Ramos v. La Montana Moving & Storage, 247 A.D.2d 333 (1st Dept. 1998)
{$150,000 where, “…decedent regularly provided baby sitting services to the
three infant children of his daughters; imparted family, cultural and language
traditions to these grandchildren; taught the grandchildren the Spanish
language; provided regular counseling and guidance to his daughters and son;
and provided emergency financial assistance to one of his daughters.}
Here, plaintiff’s own expert, presenting a best-case-scenario, said that
plaintiff’s losses amounted to $239,000. The verdict, $550,000 demonstrates
that emotion, rather than rationality dominated the jury’s deliberations. At a
minimum, the award should be reduced.
55
POINT IV
PLAINTIFF, MIRIAM OATES-LEVY
FAILED TO PROVE THAT SHE
SUSTAINED $100,000 IN PECUNIARY
LOSSES ARISING OUT OF HER MOTHER’S
DEATH.
Under EPTL §5-4.1, 5-4.3, plaintiff, Miriam Oates, 39 at the time of the
trial (203) was entitled to recover the pecuniary damages she sustained as a
result of her mother’s death. Plaintiff concedes that she cannot point to any
dollar-and-cents losses; her mother hadn’t supported her in years, and other
than an occasional “care-package,” wasn’t contributing to her support.
Plaintiff nevertheless insists that under governing authority, she is
entitled to damages for the loss of her mother’s advice and guidance, losses that
the Courts have deemed pecuniary. See, Gonzalez v. New York City Housing
Auth., 77 N.Y.2d 663 (1991).
But recall how thin plaintiff’s proof of her mother’s nurture and
guidance actually was. Plaintiff would see her mother 2 or three times a year;
talk to her on the phone more frequently. But plaintiff failed to present
concrete proof that her mother offered the sustained nurture and guidance that
the law recognizes as entitling one to monetary damages.
Perez v St. Vincents Hosp. & Med. Ctr. of N.Y., 66 A.D.3d 663, 886
N.Y.S.2d 486 (2nd Dept. 2009), proves instructive. There, a jury awarded
damages to the two adult children of a wrongful death victim -- $200,000 each.
56
As here, the two provided sketchy accounts of their relationship with their
father. Defense counsel in his brief, characterized the proof in the following
words:
Although they testified that he was a
companion to them and friend and they enjoyed his
company, there was nothing which, in any way,
indicated that there was any type of guidance
associated with his presence or any pecuniary loss to
the children of the decedent Defendant-
Respondent’s brief, 2009 Westlaw 8411897, p.16.
The Court agreed with defendant. It vacated the wrongful death award
to the adult children in its entirety.
The analogy to our case is strong. Here, too, plaintiff saw her mother on
occasion, doubtless enjoyed her company, and undoubtedly enjoyed taking to
her on the phone. But aside from these contacts, plaintiff failed to prove that
she lost the valuable and substantive guidance the law regards as pecuniary.
And the jury—to some degree, at least—recognized it. It refused to
award plaintiff anything for the six-year period between the accident and her
mother’s death. Inexplicably, and inconsistently, it awarded her damages for the
future. The jury had it right the first time. The wrongful death award should be
vacated in its entirety.
57
POINT V
THE CUMULATIVE EFFECT OF
PLAINTIFF’S INAPPROPRIATE REMARKS
DEPRIVED THE AUTHORITY OF A FAIR
TRIAL.
Listening to plaintiff, the jury would have learned that the Authority
demoted bus operator Brady to a janitor, because it knew he’d deliberately
driven away from the accident scene, after flattening decedent like a pizza,
treating her with the indifference one might treat a dead squirrel, or other road-
kill.
Moreover, the Authority—plaintiff charged—was perversely
downplaying the significance of Rachel’s death. It kept insisting that under the
law, plaintiff was entitled to modest damages, if any, which meant they believed
that Rachel’s life wasn’t worth a cent. And to prove it, the Authority had
“hired” one of the best trial attorneys in the Bronx, as well as a whole “bunch”
of other witnesses.
Even more. Defense counsel flirted with anti-Semitism, insinuating that
decedent and her family were bad Jews, and that their refusal to allow an
autopsy wasn’t sincere.
Although the Authority repeatedly objected to these comments, moving
for a mistrial several times, the trial court denied the motions. This was error.
58
No one disputes the proposition that a trial attorney has the right,
indeed the obligation, to prosecute her case aggressively and passionately. See,
e.g., Selzer v. New York City Transit Auth., 100 A.D.3d 157, 163 (1st Dept. 2012)
{Noting that, “…counsel is afforded wide latitude in summation to
characterize and comment on the evidence…”} But where, as here, an attorney
strays beyond the bounds of fair comment, she jeopardizes any victory her
improprieties might have garnered (See generally, Valenzuala v. City of N.Y., 59
A.D.3d 40 [1st Dept. 2008]).
For example, in Nuccio v. Chou, 183 A.D.2d 511 (1st Dept. 1992),
plaintiffs obtained a substantial verdict on a claim that defendant damaged their
property. But this Court found plaintiff’s misconduct deprived defendant of a
fair trial. Among other things, plaintiff’s counsel vouched for the credibility of
his witnesses; injected racial overtones into his case, and suggested that
defendant’s experts were unworthy of belief, that they were trading their
opinions for cash. Cumulatively, those comments convinced this Court to
order a new trial.
Berkowitz v. Marriott Corp., 163 A.D.2d 52 (1st Dept. 1990) represents
more of the same—a plaintiff’s attorney throwing restraint to the wind, in an
effort to prevail at any cost. Plaintiff labeled defendant’s experts hired guns,
retained to “fluff” up the defense, and wondered why—when Manhattan
provided such a rich resource of medical personnel—defense counsel had to
59
call a physician from Suffolk County, “After that, boy, it’s Europe.” The
result—on appeal–– matched the result in Nuccio: the court reversed the verdict
for plaintiff and directed a new trial.
Plaintiff’s counsel overzealousness in Valenzuala, supra, yielded the same
result—a victory at trial, reversed on appeal. There, plaintiff repeatedly
vouched for the character of his witnesses, while plaintiff’s counsel,
“…interjected his own view of the facts…” By asking the jury to decide the
case on issues unrelated to the suit’s merits, plaintiff forfeited the right to the
verdict. The Court ordered a new trial.
Minichiello v. Supper Club et al, 296 A.D.2d 350, 352 (1st Dept. 2002) supra
featured a race-baiting attorney whose crude analogies to the Holocaust not
only were morally repugnant, but strategically unwise. The Court directed a new
trial, because:
the aggregate effect of such comments and
conduct of plaintiff's [**26] counsel, which cannot
be characterized as inadvertent or harmless, inflamed
the jury's passion and sympathy to such an extent as
to render the resulting judgment meaningless…
Other cases also offer a cautionary note, too. Whether it was:
the attorney in Sanchez v. MaBSTOA 170 A.D.2d 402 (1st Dept.
1991), who aimed to sway the jury by informing them that she
judged her witness to be credible; or
60
the one in Rodriguez v. New York City Housing Auth., 209 A.D.2d
260 (1st Dept. 1994) who “…improperly intimated that
defendant’s medical expert was unworthy of belief because he was
compensated for [appearing] at trial…” and who also made
herself an unsworn witness; or
the ones in Melendez v. New York City Transit Auth., 196 A.D.2d
460 (1st Dept. 1993), where plaintiff accused defendant of being
guilty of racism;
the one in Grasso v. Koslowe, 11 Misc.3d 1086A, 819 N.Y.S.2d 848
(Sup. Ct. Richmond Co. 2006), aff’d. 38 A.D.3d 599 (2nd Dept.
2007), who charged defendant in a wrongful death action of
treating decedent “…as if ‘she was [an] animal…she had this
coming.’”
In these cases, victorious plaintiffs forfeited trial victories when they
shredded the bonds of propriety, in an unrestrained campaign to win at any
costs.
These cases do not bode well for plaintiff’s suit. They demonstrate that
plaintiff’s verdict, obtained by resort to inflammatory remarks, appeals to
prejudice, and the use of inadmissible evidence cannot be allowed to stand.
61
Consider just a few of plaintiff’s offenses. Plaintiff told the jury that the
driver had to have been at fault, because the Authority had hauled him off a
bus, demoting him to a janitor. And plaintiff, over objection, questioned Paez
whether the Authority thought Brady hadn’t adhered to its standards, although
those standards were stricter than the common-law’s. (See, Williams v. New York
City Transit Auth., 108 A.D.3d 403 [1st Dept. 2013]; Cropper v. Stewart, 117
A.D.3d 417 [1st Dept. 2014).
Plaintiff also faulted the Authority for challenging her damages case,
suggesting that the Authority thought that Rachel’s death was worth nothing.
And by accusing the Authority of squashing decedent like a pizza, leaving her
to lie dead in the street like roadkill, plaintiff added fire to an incendiary
situation of her own creation. Add to this toxic stew plaintiff’s other
improprieties—the repeated references to the “killer” driver, references so
frequent and obtrusive that the trial court on its own told plaintiff to stop (A-
44), and the harm to the Authority’s defense stands out even more
prominently.
The charge that defense counsel engaged in anti-Semitism
Perhaps no charge was more biting and unfair than the one, that in
essence, accused defense counsel of anti-Semitism. Defense counsel had
questioned Mrs. Oates about what she knew about the details of her mother’s
day-to-day activities, to show that the bond between the two had frayed over
62
the years. Defense counsel, for example, asked Mrs. Oates how often she
visited her mother, whether she had any recent photographs of her, and
whether she knew the details of her mother’s synagogue attendance. The less
Mrs. Oates knew, the less credible her claim of a close connection with her
mother. Nothing in this questioning aimed to persuade the jury that decedent’s
religious beliefs bore any relevance to the suit. It was wrong of plaintiff to
suggest otherwise.
63
CONCLUSION
Confronted with the tragic death of Rachel Levy, the jury here faced a
difficult choice. It had to set aside its natural feelings of compassion, evaluating
the evidence fairly, rationally, and dispassionately. Perhaps that was asking too
much of them, but plaintiff’s comments, venomous and inflammatory did not
make matters easier.
Under settled principles of law, plaintiff failed to make out a case, failing
to prove that the driver was negligent. And the damages awards are either
untenable—the wrongful death award to Hadasah and the pain and suffering
award to Rachel’s estate––or excessive.
The Court should dismiss the suit, order a new trial, dismiss some of the
awards, or reduce the others.
Dated: Brooklyn, New York
July 26, 2014
Lawrence Heisler
Of counsel
_______________________
Lawrence Heisler, Esq.
Attorney for Defendant
New York City Transit Authority
130 Livingston St. Rm. 1147
Brooklyn, N.Y., 11201
(718) 694-3851
64
CERTIFICATE OF COMPLIANCE
The foregoing brief was prepared on a computer using the Word 10
program. A proportionally spaced typeface was used, as follows:
Name of typeface: Garamond
Point size: 14
Line spacing: Double Space
The total number of words in the brief, inclusive of point headings and
footnotes and exclusive of pages containing the table of contents, table of citations,
proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc., is 12,978.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
----------------------------------------------------------------------- X
MIRIAM LEW OATES, as Administratrix of the
Estate of RACHEL LEW, deceased, and MIRIAM
LEW OATES, Individually and HADASSAH LEW,
Plaintiffs-Respondents,
-against-
NEW YORK CITY TRANSIT AUTHORITY,
Defendant-Appellant,
and
MANHATIAN AND BRONX SURFACE
TRANSIT OPERATING AUTHORITY, MTA
BUS COMPANY, METROPOLITAN
TRANSPORTATION AUTHORITY and "JOHN
DOE" who is intended to be the bus operator,
Defendants.
Index No.: 302214/07
PRE-ARGUMENT
STATEMENT
----------------------------------------------------------------------- X
1. Title of the action:
2. Full name of the original parties and
any change in the parties:
3. Name and address and telephone
number of counsels for respondents:
4. Name and address and telephone
number of counsel for appellant:
5. Court and County from which appeal is
taken:
6. State whether appeal is from an order
or a final judgment and the date of
entry thereof:
7. State whether there is any additional
appeal pending in the same action:
See above.
See above; no changes.
LAW OFFICES OF
ROSEMARIE ARNOLD
825 Third Avenue, 4th Floor
New York, NY 10022
212) 883-8833
WALLACE D. GOSSETI
130 Livingston Street, Rm. 1150
Brooklyn, New York, 11201 ·
(718) 694-3853
Supreme Court, Bronx County.
Judgment entered September 9, 2013.
None.
8. State whether there is any related
action or proceeding in any court of
any other jurisdiction:
9. · State the nature and object of the
cause of action or special proceeding:
10. State as briefly as possible the result
reached in the court or administrative
body below:
11. State as briefly as possible the
grounds for re11ersal or modification:
2
By:
None.·
Personal injury.
Judgment for plaintiff.
Failure to make. out prima facie case;
absence of triable issue of material
fact; against weight of the evidence;
erroneous rulings; excessiveness;
abuse of discretion.
"/}