Grimaldi v. Spievogel

Dec 24, 2002
Versions:300 A.D.2d 200
751 N.Y.S.2d 737
2002 N.Y. App. Div. LEXIS 12845

—Judgment, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered on or about November 28, 2001, which, upon a jury verdict in defendants’ favor, dismissed the complaint in this action to recover for personal injuries pursuant to Labor Law §§ 200 and 241 (6), unanimously affirmed, without costs.

By withdrawing his motion for mistrial and/or a continuance and specifically choosing to proceed with the trial represented by the same attorney, plaintiff waived any subsequent argument that a mistrial should have been granted. In any event, were the issue properly preserved, we would find it a proper exercise of discretion (see R. Hoe & Co. v Crown Cork & Seal Co., 22 AD2d 861, affd 16 NY2d 574) for a court not to accede to a request for a mistrial or continuance made after the completion of jury selection, upon the ground that a party, although represented by the same law firm since the action’s commencement some seven years before, had suddenly and without explanation lost confidence in the attorney whose intention to try the matter had been made known to defendants’ counsel, and presumably plaintiff, more than a year in advance of the trial.

The trial court’s charge sufficiently incorporated plaintiff’s factual contentions with respect to his claims based upon Labor Law §§ 200 and 241 (6). Concur — Tom, J.P., Andrias, Rosenberger, Friedman and Marlow, JJ.