Ritz v. Lee

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Steinhardt, J.), entered January 27, 1999, which, upon a jury verdict, is in favor of the defendant Oliver Lee and against them dismissing the complaint insofar as asserted against him. Ordered that the judgment is affirmed, with costs. The plaintiffs contend that they are entitled to a new trial because the respondent’s attorney improperly made a brief reference on summation to certain deposition testimony which had not been admitted into evidence. However, the plaintiffs failed to object when the improper reference was made, did not request curative instructions when the matter came to the court’s attention during jury deliberations, and never moved for a mistrial. Accordingly, the plaintiffs’ contention is unpreserved for appellate review (see, Lind v City of New York, 270 AD2d 315; Bacigalupo v Healthshield, Inc., 231 AD2d 538; Liebgott v City of New York, 213 AD2d 606; Torrado v Lutheran Med. Ctr., 198 AD2d 346). In any event, reversal is not warranted, as this isolated instance of misconduct “did not divert the jurors’ attention from the issues to be determined with respect to liability” or deprive the plaintiffs of a fair trial (Torrado v Lutheran Med. Ctr., supra, at 347). Joy, J. P., Friedmann, Krausman and H. Miller, JJ., concur.