Opinion
570821.
Decided October 19, 2005.
Plaintiffs appeal from a judgment of the Civil Court, Bronx County, entered on or about June 6, 2001 after a nonjury trial (Wilma Guzman, J.) in favor of defendants dismissing the complaints.
Judgment entered on or about June 6, 2001 (Wilma Guzman, J.) affirmed, with $25 costs.
PRESENT: McCooe, J.P., Davis, Schoenfeld, JJ.
These consolidated actions for civil assault and battery stem from a 1995 altercation between two, long-feuding neighboring families in the vicinity of their Bronx residences. Plaintiffs Pearl Tannenbaum and Howard Tannenbaum, mother and son, allege that they were attacked by defendants Marie Franck and Jean Michel Franck, sister and brother. The nature and circumstances of the street altercation were hotly contested at trial, with each of the four combatants offering conflicting versions of who did what to whom, and when. For example, Howard testified that Marie slapped him in the face while he was being held by Jean Michel, and Jean Michel in turn testified that Pearl struck him with her cane during the fray. Howard further testified that when Marie began wielding a crowbar against plaintiffs, he grabbed for the weapon, at which point Marie bit him on the hand.
Inasmuch as the trial court's initial written decision did not comply with the specificity requirements of CPLR 4213(b), we previously remanded the matter for issuance of a decision setting forth the essential facts and the court's rationale. Upon remand, the trial court issued a lengthy decision summarizing the testimony of each of the witnesses in considerable detail and ultimately determining, based upon express credibility findings, that plaintiff Howard Tannenbaum "incited" the "parties' physical confrontation" by verbally threatening and spitting at defendant Jean Michel Franck and that the response of both defendants was appropriate and "measured." Howard's testimony as to the type and severity of physical force used by Jean Michel during their initial encounter was specifically rejected by the court as incredible. These fact- and credibility-laden findings represent a fair interpretation of the voluminous trial evidence, and should not be lightly cast aside on the cold record presented on appeal.
Any omission from the court's decision of factual findings addressing plaintiff Pearl Tannenbaum's encounter with defendant Marie Franck does not warrant a new trial in the context of this case. Significantly, no competent medical evidence was adduced establishing a causal connection between Marie's conduct and Pearl's alleged injuries from the purported use of a crowbar ( see Razzaque v. Krakow Taxi, 238 AD2d 161, 162; Nelson v. Town of Glenville, 220 AD2d 955, 957, lv denied 87 NY2D 807 [1996]). In particular, the alleged injuries to Pearl's left thigh/lower back from such a weapon (which was never recovered, and whose existence was flatly denied by defendants) were not of such character as to enable a factfinder to draw any conclusions about causation based on knowledge or experience ( cf. Gordineer v. Gallagher, 160 AD2d 672; Parrott v. Pelusio, 65 AD2d 914). Notably, the trial court repeatedly cautioned plaintiffs as to the lack of such medical proof during the course of the trial. Nor should a different result obtain on the basis of plaintiffs' pro se status ( see Banushi v. Lambrakos, 305 AD2d 524, lv denied, 1 NY3d 504; Roundtree v. Singh, 143 AD2d 995).
We have considered plaintiffs' arguments with respect to the trial court's evidentiary rulings and find no error warranting reversal. The court properly quashed plaintiffs' subpoena to unseal certain criminal records pertaining to Marie following her 1997 acquittal on misdemeanor assault charges arising out of this incident ( see Matter of Hynes v. Karassik, 47 NY2d 659; CPL 160.50). In addition, that portion of the sealed evidence containing hospital records, reflecting plaintiffs' intake statements concerning the incident, was otherwise available to plaintiffs by conventional means ( see Van Loon v. Moskowitz, 172 AD2d 749). Nor did the court err in admitting the rebuttal testimony of nonparty Raul Gaynor, the parties' neighbor, for the limited purpose of impeaching Pearl's testimony that she had exhibited no prior provocative conduct toward defendants ( cf. Rosso v. The Beer Garden, Inc., 12 AD3d 152, 154). In any event, the evidentiary rulings, even if error, did not affect the result below in the context of this bench trial.
We are satisfied that plaintiffs received a fair trial. That the trial court made rulings unfavorable to plaintiff during the course of trial and ultimately rendered a verdict adverse to them does not, without more, establish bias ( see Green Props. v. Shaoul, 155 AD2d 331, 332).
This constitutes the decision and order of the Court.
DISSENTING MEMORANDUM
I respectfully dissent. The self-represented plaintiff son and his seventy-one year old plaintiff mother claim that they were assaulted by the defendant and his sister causing personal injuries which required transportation to a hospital by ambulance. A factual issue was presented as to who was the initiator of the fight between the plaintiff son and defendant brother and as to the role of the plaintiff mother and defendant sister in the fight. The plaintiff mother and defendant sister were not at the scene at its inception but arrived while the altercation was taking place. The record is clear that the blows struck by the plaintiff son and defendant brother were intentional as were the blows and biting by the defendant sister.
Following a bench trial, the trial court found for the defendants stating "that the defendants lacked the requisite intent" to prove an assault and failed to prove that the defendants "acted intentionally" to establish harassment which was an alternative theory advanced by the plaintiffs.
On appeal this Court remanded pursuant to CPLR § 4213 (b) requesting the essential facts for the conclusion reached by the trial court. This Court stated:
. . . the trial court failed to specify the essential facts supporting its decision or, for the most part, to set forth its rationale, stating merely that based upon "the [unspecified] credible evidence" defendants "lacked the requisite intent" to support plaintiffs' recovery under an intentional tort theory. The court's unelaborated statement concerning the defendants' intent, devoid of any specific factual findings bearing on the particular circumstances of the physical confrontation giving rise to the action, was conclusory in nature and, without more, does not permit intelligent appellant review ( see, Weckstein v. Breitbart, 111 AD2d 6, 7).
Apart from the technical remand, a finding of lack of intent could not be supported on the basis of the testimony of both sides since the blows were clearly intentional.
The trial court has submitted supplemental findings of fact which reach the same result on a different ground. The substance of these factual findings are that the plaintiff son "initiated and completed the first physical contact of the confrontation by spitting on the defendant Frank (brother) and that the defendant's response was measured self-defense." Self-defense was never pleaded nor does the record support such a finding.
The plaintiffs advance several grounds for reversal. The principal ground is that they were denied a fair trial based upon the trial court's numerous erroneous and prejudicial rulings.
There are two separate grounds for reversing the lower court's decision and rejecting certain evidentiary rulings. The two plaintiffs sued the two defendants. The trial court's decision dismissing the complaint considered only the claim by the plaintiff son against the defendant brother but did not consider the claim by the plaintiff son against the defendant sister or the plaintiff mother against the brother and sister defendants. Clearly the defendant sister entered the fight and the plaintiff son testified she used a crowbar. The defendant sister admitted she bit the plaintiff son's hand but said he had grabbed her hand. There is no basis given for dismissal of the claim by the plaintiff mother against both defendants.
The trial court's decision reads in part, "The plaintiffs have instituted numerous proceedings alleging various altercations with their neighbors. It appears that this Court has become the plaintiff's 'boxing ring.'" Whether this is factually correct or if instituting prior proceedings had a basis or the result thereof should not be the issue. This case should be judged on its own merits and not whether a party has a propensity to bring other court proceedings (see Matter of Brandon, 55 NY2d 206).
The only witnesses to the event were the parties. Nevertheless, the trial court's written decision relied in part upon Raul Gaynor, who testified that the plaintiffs had harassed the defendants on prior occasions. This evidence was improperly admitted since it relied upon alleged prior conduct to show an aggressive propensity by the plaintiff ( Matter of Brandon, 55 NY2d 206). Furthermore, the trial court prevented the plaintiff son from showing bias, in that he had previously been assaulted by Gaynor and had obtained an order of protection against him after a conviction for harassment.
The written decision and record are replete with racial remarks allegedly made by the plaintiffs to the defendants and Gaynor. On the other hand, the trial record reflects that the trial court precluded the plaintiffs from testifying as to anti-Semitic remarks allegedly made to them.
Apart from the reasons given, the record reflects that the trial court exhibited hostility to the plaintiffs and the court's numerous rulings denied the plaintiffs a fair trial ( Schrager v. New York Univer., 227 AD2d 189 [1st Dept 1996]).
The majority raises evidentiary issues which require a response. The Trial Court quashed plaintiffs' subpoena to unseal certain criminal records of the defendant sister's acquittal for assault arising out of the same incident. Defendant affirmatively placed her underlying conduct in issue by interposing counterclaims for harassment and nuisance against plaintiffs in this civil litigation thereby waiving the protection afforded by CPL 160.50 ( Rodriguez v. Ford Motor Co., 301 AD2d 372 [1st Dept 2003]; Wright v. Snow, 175 AD2d 451 [3rd Dept 1991], lv dismissed 79 NY2d 822). To hold otherwise would allow defendant to use the privilege "as a sword rather than a shield" to gain an advantage in a civil action ( Koump v. Smith, 25 NY2d 287, 294).
Plaintiffs' offer of proof indicates that a portion of the sealed records contains hospital records from Jacobi Medical Center including plaintiffs' respective intake statements that they were hit with a "crowbar." Apart from any credibility or self-defense issues, such statements would be relevant to the medical diagnosis or treatment of plaintiffs' injuries ( Williams v. Alexander, 309 NY 283, 287; People v. Edwards, 261 AD2d 899 [4th Dept 1999], lv denied 93 NY2d 1017; People v. Goode, 179 AD2d 676, 677 [2nd Dept 1992], lv denied 79 NY2d 1001; Prince, Richardson on Evidence §§ 8-309, 8-310 [Farrell 11th ed]). Furthermore any injuries such as bite marks and skin discolorations (depicted in photographs) were within the experience and observation of an ordinary layman and did not require expert medical testimony as to causation ( Ingleston v. Francis, 206 AD2d 745 [3rd Dept 1994]; Parrott v. Pelusio, 65 AD2d 914 [4th Dept 1978]).
The Judgment should be reversed and a new trial directed before a different Judge.