Virgo v. Bonavilla

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs. In this medical malpractice action, plaintiff ascertained on cross-examination that one of the members of the medical malpractice panel (see Judiciary Law, § 148-a) was an acquaintance of the defendant. Following a jury verdict of no cause of action, plaintiff moved to set aside the verdict upon the purported bias of the malpractice panel member. In these circumstances, plaintiff waived her objection by not [984] timely moving for a mistrial at the time the relationship between the defendant and the panel member was revealed. A party is not permitted to speculate upon a favorable verdict before asserting a claim that could properly be made during trial (see Taylor v Dayton Suregrip & Shore Co., 64 AD2d 809, 810; Schein v Chest Serv. Co., 38 AD2d 929). Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum. Order affirmed.