| N.Y. App. Div. | Oct 8, 1985
Order of the Supreme Court, New York County (Arthur Blyn, J.), entered on or about April 26, 1984, which granted plaintiffs motion to set aside the jury verdict in favor of defendant New York City Health & Hospitals Corporation on the ground of defense counsel’s misconduct and ordered a new trial in the interest of justice, is reversed to the extent appealed from, on the law and the facts, without costs, the motion denied and the jury verdict reinstated.
We have examined the record and are in agreement with that part of the trial court’s decision which held that the jury’s determination was not against the weight of credible evidence.
The point at which zealous advocacy by an attorney in a protracted, hard fought trial becomes misconduct often presents a difficult issue, as it does here, as to which reasonable people may disagree. Recognizing that the trial court should be in a better position than we are to evaluate the question, we are nevertheless not persuaded that the record discloses conduct by the defendant’s attorney that would justify setting aside a jury verdict adequately supported by the evidence, particularly in the absence during the lengthy trial of any motion by plaintiffs counsel for a mistrial. Concur—Murphy, P. J., Sandler, Asch, Kassal and Rosenberger, JJ.