Bonilla v. New York City Health & Hospitals Corp.

—In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated August 15, 1994, which denied their motion to set aside a jury verdict in favor of the defendant New York City Health and Hospitals Corporation and against them. Ordered that the order is affirmed, with costs. By expressly stating they did not want to move for a mistrial in advance of the verdict, the plaintiffs waived their current objections to the comment in question (see, CPLR 4404 [a]; Mathews v Coca-Cola Bottling, 188 AD2d 590; Kamen v City of New York, 169 AD2d 705, 706). "Counsel may not be permitted to speculate upon whether a verdict will be favorable, before asserting a claim for a mistrial. Such a motion must be made in advance of the verdict” (Schein v Chest Serv. Co., 38 AD2d 929; see also, Virgo v Bonavilla, 49 NY2d 982). Miller, J. P., Pizzuto, Santucci and Hart, JJ., concur.