Reilly v. Wright
| Decision Date | 16 December 1976 |
| Citation | 55 A.D.2d 544,390 N.Y.S.2d 1 |
| Parties | John A. REILLY, etc. of the Last Will and Testament of Marjorie J. Reilly, Deceased, Plaintiff-Appellant, v. Myron WRIGHT, M.D., et al., Defendants-Respondents. and Albert H. Aldridge, M.D., et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
S. S. Rosdeitcher, New York City, for plaintiff-appellant.
S. DeMaggio, New York City, for defendants-respondents.
Before MARKEWICH, J.P., and MURPHY, BIRNS, CAPOZZOLI and NUNEZ, JJ.
Judgment, Supreme Court, New York County, entered May 17, 1976, unanimously affirmed, without costs and without disbursements.
The judgment appealed from dismissed the complaint following a five-to-one jury verdict in favor of the defendants-respondents in this medical malpractice action. Upon rendition of the verdict the plaintiff moved to set it aside and for a new trial solely upon the ground that it was against the weight of the credible evidence. The Court reserved decision. On March 15, 1973 the Court filed its opinion denying plaintiff's motion. On appeal, plaintiff concedes, and we agree, that 'the evidence could have supported a verdict either way.' A reversal is sought upon the ground that the misconduct of Walter G. Alton, Jr., trial counsel for defendants, deprived plaintiff of his right to have the issues considered in an atmosphere of calm and reason. More than ten years after the alleged malpractice, and more than three and a half years after a verdict was rendered, we are asked to invoke our inherent power to act in the 'interest of justice' and reverse. (Diaz v. Williams, 22 A.D.2d 873, 254 N.Y.S.2d 502; Kohlmann v. City of New York, 8 A.D.2d 598, 184 N.Y.S.2d 357; Zaulich v. Tompkins Square Holding Co., 10 A.D.2d 492, 497, 200 N.Y.S.2d 550, 555; see 4 Weinstein, Korn and Miller, N.Y.Civ.Prac., 4404.08.)
While unquestionably Mr. Alton's conduct was grossly improper, we feel that the experienced Trial Justice was in a more favorable position than we are to gauge the effect of Alton's misconduct. However, we concur with the Trial Justice that such misconduct did not prevent the careful consideration of the evidence by the jury and did not influence its verdict. Furthermore, appellant's counsel, in effect, waived his objections to Alton's conduct by not moving for a mistrial until after the jury had returned its verdict in defendants' favor. See Schein v. Chest Service Co., Inc., 38 A.D.2d 929, 330 N.Y.S.2d 147 and cas...
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... ... that such misconduct as there was "did not prevent the careful consideration of the evidence by the jury and did not influence its verdict" (Reilly v. Wright, 55 A.D.2d 544, 545, 390 N.Y.S.2d 1) ... However, to the extent that the damages verdict for wrongful death exceeds ... ...
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... ... Mason, 155 A.D.2d 655, 657, 547 N.Y.S.2d 889; Kane v. Zade, 63 A.D.2d 993, 406 N.Y.S.2d 116; Reilly v. Wright, 55 A.D.2d 544, 545, 390 N.Y.S.2d 1; Dunne v. Lemberg, 54 A.D.2d 955, 956, 388 N.Y.S.2d 635; Moore v. Town of Huntington, 39 A.D.2d 764, ... ...
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...than we are, refused plaintiff's motion to set the verdicts aside (see Reilly v. Wright, 73 Misc.2d 801, 343 N.Y.S.2d 639, affd. 55 A.D.2d 544, 390 N.Y.S.2d 1). As to the inadequacy of the verdict, that issue applies only to the verdict against defendants Peterson, and no appeal was taken f......
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...by plaintiff's attorney during summation, which was not objected to by defendants, is not preserved for review (see, Reilly v. Wright, 55 A.D.2d 544, 390 N.Y.S.2d 1; Spiselman v. Empire State Dental Group, 232 A.D.2d 296, 648 N.Y.S.2d 915, lv. denied 89 N.Y.2d 1027, 658 N.Y.S.2d 241, 680 N.......
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...Moreover, failure to object or to move for a mistrial in a timely fashion may constitute waiver of the objection. Reilly v. Wright , 55 A.D.2d 544, 390 N.Y.S.2d 1 (1st Dept. 1976) (motion for mistrial was not made before jury announced its verdict); Smith v. Rudolph , 151 A.D.3d 58, 51 N.Y.......
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Table of cases
...§ 16:110 Regent Corp., USA v. Azmat Bangladesh, Ltd et al. , 253 A.D.2d 134, 686 N.Y.S.2d 24 (1st Dept. 1999), § 5:160 Reilly v. Wright, 55 A.D.2d 544, 390 N.Y.S.2d 1 (1st Dept. 1976), § 18:20 Reis v. Volvo Cars of North America, ____N.Y.3d ___(2014), §20:40 Rendo v. Schermerhorn, 24 A.D.2d......
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...Moreover, failure to object or to move for a mistrial in a timely fashion may constitute waiver of the objection. Reilly v. Wright , 55 A.D.2d 544, 390 N.Y.S.2d 1 (1st Dept. 1976) (motion for mistrial was not made before jury announced its verdict); Smith v. Rudolph , 151 A.D.3d 58, 51 N.Y.......
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Attorney conduct
...Moreover, failure to object or to move for a mistrial in a timely fashion may constitute waiver of the objection. Reilly v. Wright , 55 A.D.2d 544, 390 N.Y.S.2d 1 (1st Dept. 1976) (motion for mistrial was not made before jury announced its verdict). At the same time, it is never appropriate......