Matter of New York City Asbestos Litig. , 145 A.D.3d 581 ( 2016 )

Matter of New York City Asbestos Litig. (2016 NY Slip Op 08590)

Matter of New York City Asbestos Litig.

2016 NY Slip Op 08590

Decided on December 22, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2016
Mazzarelli, J.P., Sweeny, Andrias, Webber, Gesmer, JJ.

2266N 190413/13

[*1] In re New York City Asbestos Litigation

Claudia DiScala, etc., Plaintiff-Respondent,

v

Charles B. Chrystal Company, Inc., et al., Defendants, Whittaker Clark & Daniels, Inc., Defendant-Appellant.

Pillsbury Winthrop Shaw Pittman LLP, New York (E. Leo Milonas of counsel), for appellant.

Levy Konigsberg LLP, New York (Matthew A. Toporowski of counsel), for respondent.

Order, Supreme Court, New York County (Martin Shulman, J.), entered March 8, 2016, which denied the motion of defendant Whittaker Clark & Daniels, Inc. (Whittaker) to include in the record the PowerPoint presentations used by plaintiff's counsel during opening and closing statements, unanimously modified, to direct that the PowerPoint presentation used during closing statements be included in the record, and otherwise affirmed, on the law, without costs.

Whittaker's objections to the content of plaintiff's counsel's PowerPoint presentation used during its opening arguments are waived, since Whittaker's counsel reviewed and consented to it in advance of opening statements. However, Whittaker timely objected to the content of the PowerPoint presentation used by plaintiff's counsel in its summation, and timely moved to include it in the record. The question of whether the jury may have been prejudiced by slides shown during closing arguments, including slides counsel cycled through quickly, is an issue likely to be raised on a post-verdict CPLR 4404(a) motion, and on appeal (People v Santiago, 22 NY3d 740, 750-751 [2014]). Accordingly, the PowerPoint slides used by plaintiff's counsel during summation should have been included in the record.

We have considered appellant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2016

DEPUTY CLERK