O'Neil v. Klass

• Decision Date: 16 January 2007
• Docket Number: 2005-05563.
• Citation: 829 N.Y.S.2d 144,36 A.D.3d 677,2007 NY Slip Op 00284
• Parties: ANN E. O'NEIL, Appellant, v. STEPHEN C. KLASS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

36 A.D.3d 677

829 N.Y.S.2d 144

2007 NY Slip Op 00284

ANN E. O'NEIL, Appellant, v.STEPHEN C. KLASS et al., Respondents.

2005-05563.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided January 16, 2007.

In a medical malpractice action to recover damages for wrongful death and conscious pain and suffering, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Jackson, J.), entered May 16, 2005, which, upon a jury verdict in favor of the defendants on the issue of liability, and upon the denial of her motion pursuant to CPLR 4404 (a) to set aside the jury verdict and for a new trial, is in favor of the defendants and against her dismissing the complaint.

Ordered that the judgment is reversed, on the law and as a matter of discretion, with costs, the complaint is reinstated, the motion pursuant to CPLR 4404 (a) to set aside the jury verdict and for a new trial is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial, with costs to abide the event.

The plaintiff maintains that she was deprived of a fair trial by several erroneous evidentiary rulings, as well as the improper conduct of the defense counsel.We agree.

The defense counsel made many improper, inflammatory remarks during the cross-examination of the plaintiff's experts and summation (seePagano v Murray,309 AD2d 910[2003]).For instance, during the cross-examination of one of the plaintiff's expert witnesses, the defense counsel repeatedly characterized the witness's responses as "lies," accused the witness of "deliberately misleading the jury," and called him "an evasive person" as well as a "professional" witness.In summation, he stated "[T]he man is a lie," and argued that the...