How Failing to Preserve the Trial Record Ruined a NY Slip & Fall Case

When it comes to the attorneys' summations at the end of trial, New York's courts will tend to give attorneys rather wide latitude as to what they can say. The reason for this is straightforward: this is the persuasive argument part of the trial.

That said, this latitude is not unlimited, and there are comments that cross the lines of permissible advocacy. On the other hand, just because an attorney crosses that line doesn't inherently mean that the other side is automatically entitled to a new trial (or a "do-over," as my kids might say).
Consider the Appellate Division, First Department's recent decision in Chappotin v. City of New York. In that slip and fall case, the defense attorney made numerous inappropriate and inflammatory remarks. Here's a small sampling:

• "[P]laintiff is a man who has played the system going on 15 years";

• Noting that plaintiff had been on disability since 1995, "[H]ere's someone who doesn't have a concern about getting medical care. He doesn't have a concern about working."

• "[T]his is someone who understands how to make his way in the world. He has come here with a story about falling here."

Given the gross impropriety of these remarks, you would assume that the plaintiff would be entitled to a new trial, right?  Guess again.

Despite acknowledging the distastefulness of defendant's counsel's statements, the appellate court nevertheless reversed the trial court's order and reinstated the jury's verdict dismissing the case, because "plaintiff failed to object to 13 of the 15 comments of which he now complains ... [and therefore] failed to preserve his objections and the verdict should be reinstated."