Brooklyn-Defense Verdict on Pedestrian Knockdown Vacated For Refusing Plaintiff a Unified Trial

On January 31, 2024, the Appellate Division, Second Department threw out a defense verdict following a bifurcated jury trial of a motor vehicle accident. The plaintiff/pedestrian claimed that while crossing Brighton Beach Avenue at its intersection with Ocean Parkway (in Brooklyn), within the crosswalk the front bumper of the defendants' vehicle struck the right side of her right leg. The defendant driver raised the typical defense that the plaintiff/pedestrian walked into the side of his vehicle between his front bumper and front tire. Personal injury trials in Brooklyn, Staten Island, Long Island and Westchester counties are generally bifurcated so that in phase 1 of the trial the jury only decides the liability issues: whether the defendant is at fault and whether plaintiff shares some percentage of fault. If the jury finds the defendant at fault the trial proceeds to phase 2 which is the damages trial when the jury first hears the details of the injuries and the testimony of medical experts. 

A finding in favor of the defendant saves time because the jury will never hear any evidence about the plaintiff's injuries in what would be phase 2 of the trial. Generally, defense attorney's prefer bifurcated trials believing it may reduce or eliminate sympathy for the plaintiff when jury is deciding only issues of fault. There is a common sense exception to the general rule favoring bifurcated trials over unified trials that presented here. Before the trial started, the plaintiff's attorney unsuccessfully argued for a unified trial in light of the discrepancy between each parties version of how the accident occurred. Plaintiff's orthopedic surgeon submitted a sworn statement that "the location and pattern of plaintiff's tibial plateau and fibula fractures demonstrated that she was struck on the right side of her lower leg by the front bumper or front end of a vehicle while she was in front of it and that her injuries could not have been caused by walking into the side of a moving vehicle" as defendant claimed. Since the jury never had the opportunity to consider the injuries in phase 1 of the trial, the defense verdict was vacated and a new unified trial was ordered. Marisova v Collins-Brewster, 2024 N.Y. Slip Op. 00414

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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