57 A.D.2d 944 | N.Y. App. Div. | 1977
In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Queens County, entered March 22, 1976, which, after a trial by jury on the issue of liability only, is in favor of defendant-respondent and against her. Judgment reversed, on the law and in the interest of justice, without costs or disbursements, and new trial granted. Defense counsel’s inflammatory remarks concerning plaintiff-appellant may well have affected the jury’s verdict and thereby deprived her of a fair trial. Furthermore, while a Trial Judge has the right, indeed, the obligation, to clarify matters that may be unclear to a jury, he should never do so in a manner which may possibly lead the triers of the facts to believe that he has a view of the facts which they should adopt. In this case the Trial Judge, by the questions he asked in an endeavor to keep the record clear, may well have caused the jury to believe the defendant-respondent’s position. Latham, Shapiro and O’Connor, JJ., concur. Martuscello, J. P., dissents and votes to affirm the judgment with the following memorandum: In my view, neither the conduct of the Trial Judge nor that of defense counsel was prejudicial to plaintiff.