Caraballo v. City of New York

Birns, J. P., and Fein, J.,

dissent in a memorandum by Fein, J., as follows: The seven-year-old infant plaintiff left his apartment building at 20 Catherine Slip in Manhattan in advance of the rest of his family, to hop and skip ahead. The family was on its way to church on this Sunday evening in February, 1977. The child slipped on the icy pavement and fell against a perimeter fence maintained by defendant New York City Housing Authority, impaling his left eyelid on a six- to seven-inch barbed wire protrusion. The testimony was that this dangerous condition had existed for about 9 or 10 months. The child suffered a severe and painful “through and through” laceration, requiring three operations at New York Eye and Ear Infirmary over a 21-month period. He was left with a 70% traumatic ptosis (drooping) of the eyelid due to depressed lavator (muscular) function, resulting in impairment of vision to the extent of loss of the superior (upper) 50% range of view. He cannot see straight forward or upward, and can only look downward. In other words, he can only see half of what he had been able to see without the drooping eyelid. He is also disfigured by cystic granuloma (knobbing of the tissue) from the scars of the operations. The ptosis apparently could not be corrected by the surgical procedures, and plaintiffs’ medical expert described this condition as “permanent”. Defendants’ medical expert, an ophthalmic surgeon, suggested the availability of a common and “very effective” operation called “Frontalus suspension”, whereby the upper lid is sutured to the eyebrow so that “when the patient elevates his brow his lid comes up and you can uncover all or much of the pupil you want.” He added that this plastic surgical procedure is generally indicated for patients as to whom ptosis operations have failed. Defendants’ medical expert’s predictions for success as a result of this surgical procedure were optimistic. The doctor testified that at his hospital, Manhattan Eye and Ear Hospital, 15 to 20 frontalus suspensions were performed under his supervision each year, “ten or 12 of them already” by August of that year, and all were successful. Plaintiff introduced hospital records revealing that only two such operations designated as “frontalus suspensions of an eyelid ptosis” had been performed at Manhattan Eye and Ear Hospital in the year and one half preceding the trial. On this basis, on summation plaintiffs’ counsel unleashed a vitriolic attack on defendants’ medical expert. We are all agreed that the evidence was sufficient to establish proximate cause. In this case the infant plaintiff’s fall against the fence resulted from a normal activity, unlike the unusual and inherently dangerous act of the plaintiff child in Rivera v City of New York (11 NY2d 856) where the complaint was dismissed. There the child was scalded falling into a bathtub of hot water after balancing precariously in his boots on the curved edge of the tub, trying to reach a light cord. Rather, this case is more akin to Pagan v Goldberger (51 AD2d 508), where the child was injured in a fall upon a sharp radiator part, left exposed by the landlord. Here, defendant landlord could reasonably expect that falls of infants or even adult residents normally happen. To leave a six- to seven-inch wire protrusion exposed, so that a person falling, under these circumstances, would be in a position to sustain injury, constitutes conduct which a jury could “find to be negligent, and the negligence so found to be so directly connected with the injury that the requirement of proximate cause is satisfied” (Pagan v Goldberger, supra, at p 512). The lesson of Pagan is that such questions of proximate cause and foreseeability are properly reserved for the jury to deliberate and determine (see Bland v Kaufman, 249 App Div 842). We are all also agreed that the evidence was sufficient to sustain the amount of the verdict ($225,000 for the child, $3,000 for his father), in light of the serious nature of the infant plaintiff’s injury. We differ only as to the extent of the prejudicial effect of plaintiffs’ counsel’s plainly inappropriate summation. It goes without saying *583that inflammatory conduct on the part of a trial attorney in a close case may warrant a new trial. By the same token, prejudicial remarks can, in the context of a given case, be insignificant where the record adequately supports the jury’s verdict (Moore v Town of Huntington, 39 AD2d 764). It is notable that in Moore the Trial Judge set the verdict of the jury aside, but the Second Department reinstated the verdict. Here an experienced Trial Judge promptly gave proper instructions and declined to grant a mistrial or to set the verdict aside. We should follow his lead. In Reilly v Wright (55 AD2d 544) we ruled that even where the case is close enough for the verdict to have gone either way, it does not necessarily follow that “grossly improper” conduct on the part of the trial counsel will prevent careful consideration of the evidence by the jury or unduly influence its verdict. This court there emphasized the weight to be given to the views of the Trial Judge. The “experienced Trial Justice was in a more favorable position than we are to gauge the effect of [the attorney’s] misconduct.” (55 AD2d, p 545.) In Cohen v Covelli (276 App Div 375, 376), relied upon by the majority, the problem, at least in part, was that “the objectionable statement complained of was allowed to stand without prompt judicial rebuke.” Not so here. The Trial Judge ruled properly, promptly and effectively. He rebuked counsel where appropriate and advised and charged the jury to disregard counsel’s improper remarks. Even in a criminal case, where the problem is obviously of greater magnitude, such judicial interposition has been held sufficient to sustain a conviction despite the prosecutor’s misconduct similar to the conduct here involved (People v Galloway, 54 NY2d 396). The conduct of plaintiff’s trial counsel is not to be condoned. However, the issues here were defined clearly enough, and the evidence was plainly sufficient for the jury to have reached the verdict it did. Under such circumstances it would be a waste of judicial resources to remand this cause for a new trial. Moreover, it would punish an infant child for the lawyer’s misconduct (cf. People v Galloway, supra). The judgment, Supreme Court, New York County (Pécora, J.), entered September 18, 1980 on a jury verdict in favor of the plaintiffs against the New York City Housing Authority, should be affirmed.