Maraviglia v. Lokshina

• Decision Date: 28 February 2012
• Citation: 92 A.D.3d 924,2012 N.Y. Slip Op. 01593,939 N.Y.S.2d 534
• Parties: Joan MARAVIGLIA, et al., appellants, v. Irina LOKSHINA, et al., respondents.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01593

92 A.D.3d 924

939 N.Y.S.2d 534

Joan MARAVIGLIA, et al., appellants,

v.Irina LOKSHINA, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 28, 2012.

John L. Juliano, P.C., East Northport, N.Y., for appellants.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondents.

REINALDO E. RIVERA, J.P., RANDALL T. ENG, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 13, 2010, which denied their motion pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of liability and for judgment as a matter of law or, alternatively, for a new trial, and (2) a judgment of the same court entered August 30, 2010, which, upon the jury verdict, and upon the order, is in favor of the defendants and against them dismissing the complaint.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law, that branch of the plaintiffs' motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for a new trial is granted, the complaint is reinstated, the matter is remitted to the Supreme Court, Suffolk County, for a new trial on the issue of liability, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order dated August 13, 2010, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

A new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants. The defendants' counsel repeatedly denigrated the medical background of the injured plaintiff's treating physician. Counsel also made inflammatory remarks, including commenting during summation that the plaintiff's treating physician and the plaintiff were “working the system.” Moreover, counsel remarked that the injured plaintiff's treating physician testified “at an enormous amount of Workers [Compensation] proceedings” and was the “go-to” doctor in Suffolk County for patients who wished to stop working. By contrast, counsel vouched for the credibility of the defendants' expert witness by thanking “God there are people like [him] who are the stop gap.”

Additionally, during cross-examination of the plaintiffs' expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a “parking lot,” even though the court had sustained the plaintiffs' objection to the first use of this reference. In addition, couns...