On May 17, 2023, an appellate court covering appeals from Queens County Supreme Court reversed a trial judge who refused to declare a mistrial during opening statements. The plaintiff claimed that while riding his motorcycle on a road in Queens when a truck driving in the opposite direction hit the high voltage electrical and communication cables strung above the road, causing them to rip away from a house and fall on top of him, causing serious and permanent injuries. Plaintiff claimed that well settled Court of Appeals decisions, impose a heightened duty on a utility company like Con Edison to maintain the lines to prevent sagging or falling - "whether or not such condition was caused by the utility company." Defense counsel filed a third party action against Verizon claiming its cables were the lowest cables attached to the pole at issue here and the were the cause of the accident. Verizon was dismissed from the case pre-trial because Con Edison was found to have unduly delayed joining them to the law suit.
Fearing that defense counsel would try to defend Con Edison by blaming Verizon, plaintiff's counsel successfully made a pre-trial motion to preclude Con Edison from blaming Verizon based on the prevailing law that holds them responsible and because the Court had previously granted dismissal of Con Edison's claims against Verizon. Defense counsel ignored the Judge's ruling and argued to the jury that one of its employees would testify that "telephone wires have been improperly tied to the higher Con Edison wires and have pulled them down" to a reduced height such that a truck came in contact with them. The trial judge specifically warned defense counsel (twice) to refrain from making any further argument to the jury that Verizon was in any way responsible for plaintiff's injuries. Once again defense counsel continued to present his Verizon theory to the jury in his opening statements. Plaintiff's counsel objected more than once to multiple prohibited comments implicating Verizon made by defense counsel during opening statements. Defense counsel responded that he only "inadvertently" violated the Court's ruling. Plaintiff's motion for a mistrial was denied and the trial concluded days later with a defense verdict.
The Second Department held that defense counsel's references to Verizon were not inadvertent as claimed but: "intentional", in "blatant disregard", "deliberate" and "egregious", thus warranting a new trial. In summary, the defense attorney's "misconduct was not harmless under the circumstances of this case" and deprived the plaintiff of a fair trial. Coward v Consolidated Edison, Inc., 2023 WL 3486332