Mulle v. Weinstein

In an action to recover damages for medical malpractice, the plaintiff appeals from (1) a judgment of the Supreme Court, Queens County (LeVine, J.), dated November 20, 1986, which, upon a jury verdict, is in favor of the defendants; and (2) an order of the same court dated December 19, 1986, which denied the plaintiff’s motion to vacate the jury verdict. Ordered that the order and judgment are affirmed, with one bill of costs. Contrary to the plaintiff’s contention, the Trial Judge properly exercised its discretion in denying his motion for a mistrial based on certain comments made by the Trial Judge concerning the existence of an "epidermoid tumor”. It is well settled that "[a] motion for a mistrial is directed to the sound discretion of the trial court” (see, Harris v Village of E. Hills, 41 NY2d 446, 451), and we perceive no reason on the record before us to substitute our discretion for that of the Trial Judge. We note that the comprehensive curative instruction administered by the court — to which counsel registered no objection — served to dissipate any alleged prejudice engendered by the comments (see, Hiliuk v Daponte, 100 AD2d 612). Kunzeman, J. P., Kooper, Sullivan and Balletta, JJ., concur.