Objections During Closing Argument

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 277-296

CHAPTER 31

Objections During Closing

Argument

§31:01 New York Trial Notebook 31-2

I. GENERAL PRINCIPLES

A. PURPOSES

§31:01 Object to Obtain Curative

Instruction

Counsel may object during the adversary’s

closing argument. [Dimon v. New York Central

and Hudson R.R. Co., 173 NY 356, 66 NE 1

(1903); Kraus v. M. & G.W. Corp., 203 AD 582,

196 NYS 845 (1st Dept 1922) (verdict reversed

and trial court chastised for admonishing counsel

and threatening to cite him for contempt for

objecting during opponent’s summation); Binder

v. Miller, 39 AD3d 387, 387, 835 NYS2d 62, 63

(1st Dept 2007) (“blanket prohibitions such as

given in this case, directing counsel that ‘there is

to be no objecting in the middle of summations,’

are inappropriate... . it is axiomatic that where

counsel, in summing up, exceeds the bounds of

legal propriety, it is the duty of opposing counsel,

inter alia, to object specifically, to point out the

language deemed objectionable, and to request

the court rule on the objection, admonish counsel

to desist from such improper remarks, and direct

the jury at the appropriate time to disregard such

improper statements.”); Padovani v. Miller, 44

AD3d 917, 843 NYS2d 518 (2d Dept 2007) (trial

court erred in prospectively precluding the parties

from objecting to summations, although the error

was harmless).] If the court sustains the objection,

the court may give a “curative” instruction to

the jurors, telling them to disregard the improper

statement. [Van Valkenburgh v. Koehler, 164

AD2d 971, 559 NYS2d 766 (4th Dept 1990);

see also Layton Sales & Rentals, Inc. v. Somat

Realty Corp., 39 AD2d 640, 331 NYS2d 164

(4th Dept 1972) (reversal not warranted where no

objection made during summation and no request

for curative instructions).] The court may even

admonish counsel for the remark. [Dimon, citing

Crumpton v. United States, 138 U.S. 361 (1891)

(noting refusal of the court to so admonish counsel

and instruct jury is grounds for exception); Kraus.]

The court should give curative instructions

immediately. When the court sustains an objection

but does not give the “curative instruction” until

the end of the summations, the instruction is

given too late and requires reversal. [See Boyd

v. Blessey, 96 AD2d 816, 465 NYS2d 563 (2d

Dept 1983) (reversal required where no curative

instruction given until after summations ended;

also instruction itself held inadequate).]

§31:02 Object to Establish Record

for Appeal

If you fail to object to improper closing

argument, you may fail to preserve claims of error

for appellate review. [Heberer v. Nassau Hospital,

119 AD2d 729, 501 NYS2d 143 (2d Dept 1986);

see also Gonzalez v. Cheng, 287 AD2d 595, 731

NYS2d 887 (2d Dept 2001) (by not objecting to

defense counsel’s comments plaintiffs failed to

preserve their claims of error for appellate review;

also, when considered in context, comments were

within the bounds of the wide latitude allowed in

summation); Meyers v. Levine, 273 AD2d 449,

711 NYS2d 742 (2d Dept 2000) (plaintiff’s claim

that summation comments deprived her of a fair

trial were unpreserved since she failed to object);

Schneer v. Bellantoni, 250 AD2d 666, 672 NYS2d

756 (2d Dept 1998) (defendant’s counsel objected

to only two of a number of challenged comments

in summation, thus waiving review with respect

to the other comments); Alston v. Sunharbor

Manor, LLC, 48 AD3d 600, 854 NYS2d 402 (2d

Dept 2008) (defendant made no objection to many

of the allegedly improper remarks of plaintiff’s

counsel in summation, and so the issue was not

preserved).] In Penn v. Amchem Products, 85

AD3d 475, 925 NYS2d 28 (1st Dept 2011), the

trial court erred in setting aside a verdict for

defendant. Defendant’s argument that plaintiff

counsel’s remarks on summation were improper

was unpreserved, since defendant failed to object

during summation, ask for curative instructions, or

seek a mistrial. In Chappotin v. City of New York,

90 AD3d 425, 933 NYS2d 856 (1st Dept 2011),

the First Department reversed the trial court’s

grant of a new trial and reinstated a verdict in

favor of defendant C. Plaintiff failed to object to

13 of 15 comments complained of on appeal, and

the court had sustained the two objections and had

given a curative instruction, so “[p]laintiff failed

to preserve his objections and the verdict should

be reinstated.” [Id. at 426, 933 NYS2d at 857.] A

dissent acknowledged that plaintiff had failed to

preserve his argument, but felt that the remarks