Ougourlian v. New York City Health & Hospitals Corp.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Dye, J.), entered October 17, 2002, which, upon a jury verdict in favor of the defendant on the issue of liability, and upon the denial of their motion pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence, is in favor of the defendant and against them dismissing the complaint. [645] Ordered that the judgment is reversed, on the law and as a matter of discretion, the motion is granted, the complaint is reinstated, and a new trial is granted, with costs to abide the event. The plaintiffs were denied a fair trial in this medical malpractice action by virtue of the cumulative effect of the improper conduct of the trial court, before testimony began, during the plaintiffs’ direct case, cross-examination of the defense witness, and after the close of the evidence. As a result of such conduct, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner (see Perkins v New York Racing Assn., 51 AD2d 585, 586 [1976]; Habenicht v R.K.O. Theatres, 23 AD2d 378 [1965]; Livant v Adams, 17 AD2d 784 [1962]). Under the circumstances, the plaintiffs were not afforded a fair trial. Accordingly, a new trial is warranted. In addition, we note that the trial court should have given a circumstantial evidence charge. The plaintiffs’ remaining contentions either are without merit or have been rendered academic in light of our determination. Smith, J.P., Goldstein, Mastro and Rivera, JJ., concur.