Schaffer v. Kurpis

Nov 19, 1991
Versions:177 A.D.2d 379

Judgment, Supreme Court, New York County (Ira Gammerman, J.) entered July 30, 1990, after a jury trial and verdict in favor of defendant dismissing the complaint, unanimously reversed, on the law, the facts, and in the exercise of discretion, the complaint reinstated and the matter is remanded for a new trial upon both causes of action before another Justice, with costs to abide the event.

*380Upon our review of the entire record in this dental malpractice action, we conclude that the egregious misconduct of defendant’s counsel, including her interjection of plaintiff-patient’s alleged use of cocaine without the slightest good faith basis, and the equally specious and prejudicial impeachment of one of plaintiffs experts, deprived plaintiff of the fair trial to which she was entitled (Popplewell v Clark, 22 AD2d 1014). Likewise counsel’s willful defiance of court rulings—a continuous course of conduct throughout the trial resulting in acrimonious and escalating exchanges with the bench—undoubtedly served to divert the jury’s attention from the genuine and closely contested issues (Mercurio v Dunlop, Ltd., 77 AD2d 647).

Moreover it also appears that the Trial Justice, whether or not provoked by counsel’s misconduct, "so far injected himself into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice” (Kamen Soap Prods. Co. v Prusansky & Prusansky, 11 AD2d 676). Particularly, the fencing match indulged in by the court with plaintiffs expert witness, Dr. Lenchewski, as well as its unwarranted interventions repeated with virtually every other witness, could not have failed to impress upon the jury the court’s prevailing skepticism as to the merits of plaintiffs case, and the cumulative effect of this conduct rose to the level of reversible error (Siefring v Marion, 22 AD2d 765; Salzano v City of New York, 22 AD2d 656; Lopez v Linden Gen. Hosp., 89 AD2d 1010). Concur—Carro, J. P., Milonas, Ellerin, Wallach and Ross, JJ.