Ortiz v. Jaramillo

• Decision Date: 03 May 2011
• Citation: 84 A.D.3d 766,921 N.Y.S.2d 870,2011 N.Y. Slip Op. 03822
• Parties: Ileana ORTIZ, etc., et al., appellants,v.Ana JARAMILLO, et al., defendants, George Tsioulas, respondent.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 766

921 N.Y.S.2d 870

2011 N.Y. Slip Op. 03822

Ileana ORTIZ, etc., et al., appellants,

v.Ana JARAMILLO, et al., defendants, George Tsioulas, respondent.

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

May 3, 2011.

OPINION TEXT STARTS HEREAndrew Rosner, Garden City, N.Y., for appellants.Patrick F. Adams, PLLC (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Caryn L. Lilling and Katherine Herr Solomon], of counsel), for respondent.

Here, the comments of the plaintiffs' counsel, including his repeated denigration of the veracity of defense witnesses and his vouching for the plaintiffs' witnesses, were not isolated, were inflammatory, and were unduly prejudicial. These prejudicial comments so tainted the proceedings as to have deprived the defendant George Tsioulas of a fair trial ( see Rodriguez v. City of New York, 67 A.D.3d at 885–886, 889 N.Y.S.2d 220; Brooks v. Judlau Contr., Inc., 39 A.D.3d 447, 449, 833 N.Y.S.2d 223 revd. on other grounds 11 N.Y.3d 204, 869 N.Y.S.2d 366, 898 N.E.2d 549; Vassura v. Taylor, 117 A.D.2d 798, 499 N.Y.S.2d 120; see also McArdle v. Hurley, 51 A.D.3d 741, 743, 858 N.Y.S.2d 690; O'Neil v. Klass, 36 A.D.3d 677, 677–678, 829 N.Y.S.2d 144; Pagano v. Murray, 309 A.D.2d 910, 911, 766 N.Y.S.2d 110). Accordingly, the Supreme Court providently exercised its discretion*871 in granting that branch Tsioulas's motion pursuant to CPLR 4404(a) which was to set aside the jury verdict and for a new trial in the interest of justice.

In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Steinhardt, J.), dated April 13, 2009, which granted that branch of the motion of the defendant George Tsioulas pursuant to CPLR 4404(a) which was to set aside a jury verdict in favor of them and against that defendant and for a new trial in the interest of justice.

ORDERED that the order is affirmed, with costs.

“[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court” ( Rodriguez v. City of New York, 67 A.D.3d 884, 886, 889 N.Y.S.2d 220; see DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 608, 847 N.Y.S.2d 236). CPLR 4404(a) provides that, “[a]fter a trial ... by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict ... and ... may order a new trial ... in the interest of justice.” A motion pursuant to CPLR 4404(a) should not be granted on this...