Cohn v. Meyers

Brown, J.,

concurs in part and dissents in part and votes to modify the judgment, on the law, by deleting the provision thereof awarding the defendant punitive damages, and, as so modified, to affirm the judgment, with the following memorandum, with which Lawrence, J., concurs. On this appeal, the plaintiff asserts that two erroneous rulings by the trial court served to deprive him of a fair trial. The first concerns the denial of his motion for a mistrial following an erroneous statement by the defense counsel regarding his client’s counterclaim to recover damages for false arrest and malicious prosecution. The second concerns the court’s refusal to permit the plaintiff to explain the background facts relating to his comment to the defendant that the police were looking for him.

I cannot agree with the majority that the trial court abused its discretion either in denying the plaintiffs motion for a mistrial or in precluding him from testifying regarding events which occurred on the day prior to the assaults.

With regard to the first of these two issues, it is well established that a motion for a mistrial is directed to the sound discretion of the trial court and ordinarily should not be granted except to prevent a substantial possibility of injustice (Harris v Village of E. Hills, 41 NY2d 446). While that discretion is not absolute, and facts may exist in a particular case which might render the refusal to declare a mistrial reversible error (see, Murphy v City of New York, 273 App Div 492), the trial court does, nonetheless, have broad discretion in this area. At bar, the defense counsel’s comments in his opening statement regarding the plaintiffs responsibility for the defendant’s arrest and prosecution were concededly untrue and should, with due diligence, have been discovered to have been untrue by counsel prior to trial. I cannot conclude, however, that any prejudice which might have been suffered by the plaintiff as a result of those comments was so substantial that it could only have been cured by declaration of a mistrial. First, the comments occurred at an early juncture in the case, prior to the introduction of any evidence, and it was, therefore, unlikely that they would have had much persuasive effect on the jury’s deliberations. In addition, the court had specifically instructed the jury in both its initial and final instructions that the comments of counsel in their opening statements did not constitute evidence. Finally, upon denying counsels request for a mistrial, the court, after consulting with and apparently obtaining the approval of both counsel, issued a curative instruction to the effect that the false arrest and malicious prosecution claims were being removed from the case, and that the jury was to disregard that portion of the opening which concerned those claims.

As to the second issue, it is my view that the exclusion of evidence relating to the parties’ conduct on the day preceding the day of the incident represented a proper exercise of the trial court’s discretionary power to determine the relevancy of evidence and to exclude evidence where its relevancy is outweighed by the likelihood that it would unnecessarily inflame, confuse, or mislead the jury (see, Radosh v Shipstad, 20 NY2d 504, 508). Moreover, while I would agree with the majority that such evidence might have had some relevance to the issue of punitive damages, this record (even including the excluded evidence) does not support an award of punitive damages to either party (see, Guion v Associated Dry Goods Corp., 43 NY2d 876). Thus, any error in this regard was harmless.

Since I do not find any basis in the record to support a finding that the plaintiffs conduct rose to the level of maliciousness or recklessness necessary to sustain an award of punitive damages (see, Guion v Associated Dry Goods Corp., supra), I would strike the award of punitive damages from the judgment. I do not find, however, the award of compensatory damages in the amount of $7,500 to be so excessive as to warrant disturbing it on appeal (see Beardsley v Wyoming County Community Hosp., 79 AD2d 1110; Welty v Brown, 57 AD2d 1000, appeal dismissed 42 NY2d 995).

Finally, the defendant’s contention that the court’s charge was inadequate because it did not marshal the evidence was not preserved for review as no timely exception to the charge was made (see, Fichera v Blumberg, 97 AD2d 809). In any event, a review of the record reveals that the charge adequately stated the parties’ factual contentions and the principles of law applicable thereto.