Highest Court of New York Refuses to Consider Defendant’s Argument That Joint Trial was Improper Because Defendant Failed to Preserve Issue for Appeal New York Court of Appeals, June 28, 2016

In the 1970s, the plaintiff’s decedent, Dave John Konstantin, worked as a carpenter at two Manhattan construction sites where defendant Tishman Liquidating Corporation (TLC) was the general contractor. The decedent died of mesothelioma in 2012. This case was assigned with nine other cases to an in extremis trial calendar; all 10 plaintiffs were represented by the same firm and requested a joint trial, which the defendants opposed. Seven of the 10 cases (all with mesothelioma) were ordered to be tried together, and the remaining three (all with lung cancer) would be tried together. Before trial, five of the seven mesothelioma cases settled, leaving only this case and Dummitt v. A.W. Chesterton to be tried together. The jury found TLC 76 percent liable for the decedent’s injuries. The Supreme Court denied TLC’s post-trial motion to set aside the verdict and held that the joint trial was not improper, but reduced the jury’s damages award. TLC appealed, arguing, among other things, that the Supreme Court abused its discretion in holding a joint trial.

The Appellate Division considered Konstantin and Dummitt appeals together, and found that the Supreme Court did not err in holding a joint trial; two Justices dissented in Dummitt but concurred in the result in Konstantin, because the court should have declined to address TLC’s challenge to the Supreme Court’s pretrial order granting a joint trial on the ground that TLC failed to assemble a proper appellate record. On appeal before this court, TLC again contended that the two actions were improperly tried together. The court agreed with the Appellate Division justices who dissented in part that TLC’s failure to assemble a proper record prevented the court from reviewing the Supreme Court’s pretrial order.

TLC failed to preserve this challenge for appellate review. TLC did not specifically challenge the joint trial until its post-trial motion, which was insufficient to preserve its contention for appellate review. Although TLC argued it was unnecessary to renew its objection after the five other cases settled because it joined all defendants in opposing the plaintiffs’ pretrial motion, the court disagreed. If, after the five cases settled, TLC believed the Supreme Court should consider the propriety of a joint trial anew, it was incumbent upon TLC to object and raise specific arguments it did not assert until the post-trial motion.  TLC did not do so.

Read the full decision here.


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