Court overturns paralyzed man's $2.3 million award Monday, September 19, 2005 BY ROBERT SCHWANEBERG Star-Ledger Staff A $2.3 million jury award to a man left paralyzed by a gunshot was overturned by the New Jersey Supreme Court yesterday because he defied a judge's order that he testify. "The defendant, as much as the plantiff, has a right to his day in court," Justice Barry Albin wrote for the unanimous court. The ruling entitles Atlantic City Housing and Urban Renewal Associates to a new trial of a lawsuit that claimed it failed to provide adequate security at the apartment complex where Antonio Gonzalez was left paralyzed by a gunshot in 1996. Gonzalez, 32, did not testify in the jury trial, according to his lawyer, because he did not want to relive the shooting or risk "the jury's potential prejudice because of who he is." "He was Hispanic, he had a criminal record," said Rudy Westmoreland of West Atlantic City. "He's paralyzed from the chest down. He's a nervous wreck and he stutters." While maintaining it "obviously wasn't necessary for him to testify to prove our case," Westmoreland said Gonzalez would take the stand at the new trial. When Gonzalez declined to testify at his original trial, Superior Court Judge Charles Previti decided not to dismiss the lawsuit, saying that would have been "Draconian." But he instructed jurors they could conclude that Gonzalez's testimony would have undermined his case. The judge also allowed the apartment owner's lawyers to read several hours of sworn testimony Gonzalez had given before trial. Last year a state appeals court upheld both Previti's ruling and the $2.3 million award. But the Supreme Court ruled Gonzalez's testimony was necessary for the apartment complex owner to get a fair trial. "A plaintiff cannot invoke the jurisdiction and machinery of our civil justice system, openly defy the court's authority to suit his own purposes, and expect to triumph," Albin wrote. "Defendants have a right to a plaintiff's testimony in presenting their defense. A plaintiff who refuses to testify in the face of a court order must be told that if he persists in his refusal, his case will be dismissed with prejudice." Albin said the trial court "abused its discretion" in letting Gonzalez off so easily. "A court should not surrender control to manipulative tactics that undermine the basic fairness and integrity of the trial," Albin wrote. He described the Schoolhouse Apartments, the subsidized housing complex where the shooting took place, as "the scene of drug offenses, assaults, burglaries and shootings." The apartment owner, its property managers and security company "all acknowledged that security was inadequate," Albin said, but "differed on who was responsible for providing it, pointing fingers at one another." Princeton lawyer Thomas Hastings, who represented the apartment complex owner, called the ruling "an important vindication of the principle that a plaintiff cannot withhold evidence by refusing to testify and still get his case to trial." Westmoreland predicted the ruling would discourage people who are afraid of testifying in court from filing meritorious lawsuits.