Theresa Devito, Appellant,v.Dennis Feliciano et al., Respondents.BriefN.Y.Oct 15, 2013Bronx County Clerk’s Index No. 18057/06 Court of Appeals STATE OF NEW YORK THERESA DEVITO, Plaintiff-Appellant, against DENNIS FELICIANO and PARAGON CABLE MANHATTAN, Defendants-Respondents. >> >> To Be Argued By: Brian J. Isaac Time Requested: 30 Minutes REPLY BRIEF FOR PLAINTIFF-APPELLANT PHILIP J. RIZZUTO, P.C. Attorneys for Plaintiff-Appellant By: POLLACK, POLLACK, ISAAC & DE CICCO Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Date Completed: March 22, 2013 Of Counsel: Brian J. Isaac i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 DISCUSSION ................................................... 2 CONCLUSION .................................................. 11 ii TABLE OF AUTHORITIES State Cases Austin v. Knowlton, 234 AD2d 918 [4th Dept. 1996] .............. 9 Devaul v. Carvigo, 138 AD2d 669 [2d Dept. 1988]............... 10 Feldsberg v. Nitschke, 49 NY2d 636 ...................... 9 Getlin v. St. Vincents Hospital, 117 AD2d 707 [2d Dept. 1986] .............................................. 2 Jackson v. Sullivan, 232 AD2d 954 [3d Dept. 1996]............. 10 Lyons v. NYC, 29 AD2d 923 [1st Dept. 1968], affd., 25 NY2d 996  ................................... 10 Ochs v. Woods, 221 NY 335 ............................... 7 People v. Brown, 34 NY2d 658 ............................ 9 People v. Fields, 76 NY2d 761 ........................... 9 People v. Kitching, 78 NY2d 532 ......................... 9 People v. Macana, 84 NY2d 173 ........................... 6 People v. Paulin, 70 NY2d 685 ........................... 9 People v. Tankleff, 84 NY2d 992 ........................ 10 Sanchez v. NYC, 97 AD3d 501 [1st Dept. 2012] ................... 3 Seligson Morris v. Fairbanks Whitney, 22 AD2d 625 [1st Dept. 1965]............................................. 10 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------X THERESA DEVITO, Plaintiff-Appellant, NY County Index No. 18057/06 -against- REPLY BRIEF DENNIS FELICIANO and PARAGON CABLE MANHATTAN, Defendants-Respondents. ---------------------------------------X PRELIMINARY STATEMENT This brief is submitted by plaintiff-appellant Theresa DeVito (the “plaintiff”) in reply to that submitted by defendants-respondents Dennis Feliciano and Paragon Cable Manhattan (“Paragon”) (“defendant[s]”) in opposition to the appeal plaintiff took by leave of this Court (728) 1 from the order of the Appellate Division, First Department dated May 26, 2011 (730-31) which affirmed the judgment in defendants’ favor rendered after a jury’s verdict (49-79). We assume familiarity with the papers already before this Court, and proceed directly to our response to defendants’ argument, using subheadings for ease of reference. 1 Numerical references in parenthesis are to the pages of the record on appeal. 2 DISCUSSION [a] Defendant’s brief, though well written, actually supports plaintiff’s assertion that the failure to give a missing witness charge constitutes reversible error. Defendant, citing to Getlin v. St. Vincents Hospital, 117 AD2d 707 [2d Dept. 1986], contends that a missing witness charge is not appropriate where the “defendant’s doctor’s testimony would have been merely cumulative of the testimony of the plaintiff’s treating physician and plaintiff’s expert” (Brief at 11). But logically, if the testimony would be cumulative, it would be favorable to the plaintiff, and so its omission demonstrates the merit of plaintiff’s position. It is admitted that this was a damages-only trial in which liability was not contested (Brief at 9), and that both James V. Naidich MD, a radiologist, and Sylvester Lango MD, an orthopedic surgeon, opined that plaintiff sustained injuries, including fractured bones, causally related to the subject accident (Brief at 7-8; 157). So we fail to see how the testimony of three examining physicians (653-54) would be cumulative here, where defendants won the case on the ground that the fractures were not caused by the subject accident. Cumulative testimony, as defendant concedes, is that which repeats other testimony in the same record. Webster’s defines 3 “cumulative” as “tending to prove the same point” or “formed by the addition of new material in the same kind.” Accordingly, as we set forth previously, a finding that the withheld testimony was cumulative would have resulted in a directed verdict in plaintiff’s favor, given what plaintiff’s experts said. Defendant acknowledges this argument, then adds that a jury is free to come to its own conclusions regarding the testimony (Brief at 17). As we set forth in our main brief (Brief at 12- 13), this is not really what the case law says. All appellate courts, including this one, have now held that a jury cannot reject expert testimony arbitrarily. See, Main brief, pp. 12-14; see also, Sanchez v. NYC, 97 AD3d 501 [1st Dept. 2012]. Defendant engages in inconsistent arguments. After saying in one portion of its brief that the testimony was cumulative, which would mean it was undisputed that plaintiff sustained consequential injuries, and the jury’s verdict for defendant would have to be overturned (715), defendant claims, on the contrary, that the evidence was contested, which would mean the evidence of its experts was not cumulative, since it would have accorded with that of plaintiff’s experts. On this record, then, the general rule that a missing witness charge should be given is applicable (Brief at 10-11). This Court cannot accept defendant’s switch in arguments, which is illogical on its face. Under the governing principles, 4 the failure to give the charge could be justified only by arguing that the omitted testimony would accord with that of plaintiff’s experts – in which event plaintiff would be entitled to a directed verdict based on undisputed testimony. [b] Defendant asserts that in this record there is “nothing to establish that the testimony of any of the defendant’s physicians would have been anything more than cumulative of the plaintiff’s treating physician and plaintiff’s radiology expert” (Brief at 11). Again, if this is true, the jury’s finding is irrational, since plaintiff’s experts opined that the fractures were a result of the subject accident. [c] Defendant’s claim that plaintiff “failed to lay a proper foundation for the requested charge” because she did not set forth the substance of the defendant’s doctors’ reports (Brief at 11-12) is without merit. Plaintiff fully discussed the issue with the court and counsel (574-75). That counsel could not remember the charge by heart is a propos of nothing. He stated that the charge was required because defendant’s doctors would have supported plaintiff’s claims and contentions; the trial court wrongly stated that plaintiff could call them as witnesses, as this would not be a basis not to give the charge since the same argument could be made in every case; plaintiff’s counsel told the court that 5 defendant’s witnesses “would not have been able to controvert anything that plaintiff’s doctors have testified to” (572-77). True, a better record could have been made in which the reports were marked and the findings or conclusions dictated into the record; however, the reason for the request is clear. Defendant notes that plaintiff’s counsel in summation emphasized that defendant’s physicians would not have been able to controvert plaintiff’s claims (Brief at 16-17; 653-54). This is the Court of Appeals. This Court granted plaintiff leave to appeal the unanimous decision of the Appellate Division. That does not guarantee victory, but it is not a situation in which playing with semantic distinctions not reflective of the record should permit defendant to avoid the obvious inconsistency in defendant’s position. If the testimony is cumulative, the jury’s failure to find in plaintiff’s favor is manifest error. If the testimony is equivocal, the failure to give the charge constituted reversible error, giving the jury a false impression as to the weight of the evidence. [d] We note that defense counsel, an officer of the court, never suggests in his brief that the testimony withheld from the jury would not have been favorable to the plaintiff’s position. It was known by everyone in the trial court that the testimony would have supported plaintiff’s position and that was why it 6 was withheld. The failure to give a missing witness charge, therefore, was not proper under the facts of this case. [e] Defendant never contests plaintiff’s discussion of the case law, the nature of the charge, or where or how it should be given. Defendant admits that the preconditions for the charge are that the witness’s knowledge relates to a material element of the case, that the witness be expected to give non-cumulative testimony favorable to the party against whom the charge is sought, and that the witness is available (People v. Macana, 84 NY2d 173 ). Defendant never contests our assertion that where a defendant does not call his examining physician, a missing witness charge is normally appropriate (Brief at 14-15). Instead, defendant focuses on the asserted weakness of plaintiff’s case, such as the prior accident which was denied by one witness, and contradictions in plaintiff’s account of the subject accident (Brief at 2-5). It is alleged that the Portsmouth Hospital records do not reflect that plaintiff complained of back pain or that the pain was not properly dated as of the date of the accident. Dr. Lango’s testimony is assailed as insubstantial; it is pointed out that he only saw the plaintiff twice; he admitted a fracture could not be dated from films alone; he had not seen the Portsmouth Hospital records (Brief at 5-6). 7 Actually, Dr. Lango made it clear that he believed the subject accident caused the T-12 fracture, despite claims of a prior fall or subsequent complaints in records he did not see (454-67). He would have changed his opinion if he saw a document that refuted his conclusion, but none existed (480-84). The October 22, 2005 hospital record mentioned no injury to the T-12 vertebra or the nose (480-82). Plaintiff’s counsel attempted to question him about the reports of defendant’s physicians, at which point defense counsel objected strongly, and plaintiff was precluded from bringing before the jury what those physicians said (484-96). Dr. Lango was allowed to testify that he considered the reports of Dr. Krishner, a neurologist, Dr. Katz, an EMT specialist, and Dr. Cocaro, an orthopedist (496-97). Legally, of course, “Answers elicited on cross-examination cannot be deemed, as a matter of law, a retraction or correction of the statements made in the direct examination” (Ochs v. Woods, 221 NY 335, 340 ). But here, criticism of plaintiff’s experts only underlines the need for the missing witness charge regarding defense witnesses. [f] A missing witness charge is necessary to “level the playing field” and prevent a skilled cross-examiner from tarnishing his adversary’s witness, while exempting his own witness (whose conclusions agree with those of his adversary’s experts) from the 8 necessity of appearing to undergo similar treatment. Juries should decide cases based on the actual facts, not on the basis of one-sided testimony which, though uncontradicted on the record, can be dissected as insufficient. Given the jury’s finding as to causation on this record, failure to give a missing witness charge was improper and cannot be dismissed as harmless. [g] Criticism of Dr. Naidich’s testimony (Brief at 7-8) is not well taken; speculation regarding pre-existing arthritis that might have caused the accident is improper since defendant takes the plaintiff as he finds her. That Dr. Ashautosh Cracker testified that plaintiff was not a reliable historian and might not have suffered a nose fracture in the accident (Brief at 8-10) underlines the need for the missing witness charge. [h] Defendant complains that plaintiff’s counsel did not question her about whether she was examined by defendant’s doctors (Brief at 12); however, plaintiff’s counsel did question Dr. Lango about the physicians’ findings (484-197). Criticism of plaintiff’s counsel’s questioning of Dr. Lango on redirect examination, which went beyond what was brought out on cross is illogical, since defendant attempted to impeach his testimony. And it would certainly have been fair to prove that his 9 conclusion was congruent with that of defendant’s experts. There was no procedural impropriety. A trial court, of course, may alter traditional rules regarding the presentation of evidence in the interest of substantial justice (Feldsberg v. Nitschke, 49 NY2d 636 ). [i] In People v. Kitching, 78 NY2d 532, 537-8 , this Court stated: “As a rule, all that the requesting party can do is to show from a witness’s relationship to the issues or events in dispute that the witness was in a position to have knowledge of these issues or have observed the events. Once this demonstration has been made – in the absence of a showing of why the witness would not be called or that the charge, for some reason, would not be proper – the inference may be fairly drawn that the testimony of a missing witness, if called, would have been unfavorable.” The party seeking the charge need not establish what the witness might have to say; the party seeking to avoid the inference must establish at the trial that the testimony would be cumulative (People v. Paulin, 70 NY2d 685, 687 ; see generally, People v. Fields, 76 NY2d 761 ; People v. Brown, 34 NY2d 658 ; Austin v. Knowlton, 234 10 AD2d 918 [4th Dept. 1996]; Jackson v. Sullivan, 232 AD2d 954 [3d Dept. 1996]).2 Plaintiff met all the requirements for the charge. [j] Contrary to defendant, the failure to give a missing witness charge did deprive plaintiff of a fair trial. The fact that plaintiff could comment on the absence of defendant’s witnesses (Brief at 15-17; see, People v. Tankleff, 84 NY2d 992 ; Devaul v. Carvigo, 138 AD2d 669 [2d Dept. 1988]; Seligson Morris v. Fairbanks Whitney, 22 AD2d 625, 630 [1st Dept. 1965]) does not preclude plaintiff from securing the benefits of the charge. That plaintiff’s counsel “conveyed the elements of the charge to the jury during his summation” (Brief at 17) certainly did not undo the damage, and no case is cited in support of the remarkable claim that a court’s failure to issue a mandated charge can be cured by statements made by an attorney in summation. [k] If there are no material discrepancies on this record as to the accident or the treatment or the credibility and reliability of witnesses (Brief at 18), then plaintiff was entitled to a directed verdict regarding damages. If the trial testimony was 2 Jackson v. Sullivan, supra also disposes of defendant’s argument that plaintiff could have subpoenaed defendant’s physicians (witnesses not under defendant’s control). See also, Lyons v. NYC, 29 AD2d 923 [1st Dept. 1968], affd., 25 NY2d 996 . It is not enough to say plaintiff did not “want” to call defendant’s experts (Brief at 14); plainly, this was because they might not testify in plaintiff’s favor. 11 inconsistent (Brief at 18-24), the need for the charge to level the playing field is self-evident (Brief at 19). [l] Based on the foregoing, this Court should reverse the trial court and direct a verdict for the plaintiff or else order a new trial.3 CONCLUSION Based upon the foregoing, it is respectfully submitted that the judgment of the trial Court should be reversed and a new trial should be ordered on all issues. Respectfully submitted, By: Brian J. Isaac, Esq. POLLACK POLLACK ISAAC & DE CICCO Attorney for Plaintiff-Appellant 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Brian J. Isaac, Esq. Of Counsel 3 Plaintiff moved for a directed verdict on liability with respect to the issue of damages (507-08); accordingly, if this Court finds that the evidence was cumulative, we submit that it should award plaintiff a directed verdict, on the grounds that it is conceded that plaintiff sustained a fracture causally related to the subject accident.