The Appellate Division, First Department, at 27 Madison Ave.
The Appellate Division, First Department, at 27 Madison Ave. (NYLJ/Rick Kopstein)

I was surprised to learn from the Law Journal’s appellate practice column entitled “Pyrrhic Victories Are to Be Avoided” (NYLJ, July 3), that the Appellate Division, First Department, reached completely different legal conclusions in two cases containing virtually identical factual and legal issues; one of which I was the appellate counsel for.

Namely, the article cites Smith v. Rudolph, 2017 N.Y. Slip Op 2957 (1st Dept. 2017), wherein the First Department exercised its broad interest of justice jurisdiction to affirm the grant of a new trial because of the defense counsel’s misconduct, even though the plaintiff’s counsel had failed to move for a mistrial before the jury returned its verdict for the defendant.

Having researched Smith v. Rudolph, 2017 N.Y. Slip Op 2957 (1st Dept. 2017), it is evident that this very legal issue was the exact same legal issue that I encountered as appellate counsel for the appellant in Bertram v. Columbia Presbyt./NY Presbyt. Hosp., 126 A.D.3d 473, 2 N.Y.S.3d 790 (1st Dept. 2015), but unfortunately involved a different judicial panel that reached a different and inconsistent legal conclusion.

In Bertram, the plaintiff also moved for a new trial in the interest of justice, on the basis of the defense counsel’s egregious misconduct during trial, and after the jury had already rendered its verdict. Notably, however, despite having two of the same justices presiding over both cases; Justice Judith Gische and Justice David Friedman; in my client’s case (Bertram), the First Department reached a completely different and inconsistent legal conclusion from that of Smith, and instead held in pertinent part that:

“Plaintiffs failed to preserve their arguments regarding defense counsel’s conduct, as they failed to move for a mistrial before the jury rendered its verdict (Bertram, internal citations omitted).”

Shockingly, although in both Smith and Bertram, the appellant moved for a new trial after the jury rendered its verdict—in the interest of justice—the First Department elected to grant a new trial in Smith, while in Bertram, the First Department seemingly chose to deny the plaintiff’s application for a new trial on the exact same basis.

In my opinion, these disparate results concerning virtually identical facts and legal issues can at least in part be attributed to having two distinct judicial panels preside over the two cases.

This is buttressed by the fact that Justice Friedman, who presided over both cases, felt compelled to author a concurrent opinion in Smith, attempting to distinguish that case from Bertram, as being a “rare case.” However, Justice Friedman does not clearly explain what distinguishing factors rendered Smith more “rare” than Bertram.

In fact, the trial judge in Bertram, Justice Lucy Billings, reprimanded the trial misconduct of the defense counsel at length, and went so far as to note that the defense counsel: “must live with this record of his unprofessional, reprehensible conduct, which despite the result achieved, was a disservice to his client, and which no one would expect to be repeated.” Surely, such conduct constitutes behavior that is “so wrongful” as to constitute a “gross injustice,” as Justice Friedman variably reasoned in Smith.

Curiously, although Justice Gische also presided over both cases, she simply ruled inapposite to her ruling in Bertram than in Smith, and did not offer any reasoning for her different conclusions on the same legal issue and facts.

I therefore submit that the court or the Legislature should amend its rules, so that all motions for leave to reargue before the Appellate Division, First Department, should be reviewed en banc (by all justices), so as to avoid inconsistent and illogical legal conclusions between different panels of justices in the same department.

Leon I. Behar
New York, NY