| Sutton v Kassapides |
| 2010 NY Slip Op 04361 [73 AD3d 1021] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Joan L. Sutton, Appellant, v Elias Kassapides,Respondent, et al., Defendants. |
—[*1] Garson DeCorato & Cohen, LLP, New York, N.Y. (Joshua R. Cohen, Daniel G. Federico,and Jennifer M. Lobaito of counsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from an orderof the Supreme Court, Queens County (Hart, J.), dated February 18, 2009, which denied hermotion pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the defendant EliasKassapides, and for a new trial.
Ordered that the order is reversed, on the law and as a matter of discretion, with costs, themotion is granted, the jury verdict is set aside, and the matter is remitted to the Supreme Court,Queens County, for a new trial before a different Justice.
The plaintiff was deprived of a fair trial in this medical malpractice action as a result of thecumulative effect of the improper conduct of the trial court, both during cross-examination andin its charge to the jury (see Matter ofTravelers Indem. Co. v Mohammed, 14 AD3d 710 [2005]; Ougourlian v New York City Health &Hosps. Corp., 5 AD3d 644, 645 [2004]; Perkins v New York Racing Assn., 51AD2d 585, 586 [1976]). In addition, the trial court erred in giving an "error in judgment" charge(see Nestorowich v Ricotta, 97 NY2d 393, 399 [2002]; PJI 2:150). There was noevidence that the defendant surgeon, Elias Kassapides, had to consider and choose amongmedically acceptable alternatives regarding the treatment of the plaintiff (see Nestorowich vRicotta, 97 NY2d at 399-400; Rospierski v Haar, 59 AD3d 1048, 1049 [2009]; Vanderpool v Adirondack NeurosurgicalSpecialists, P.C., 45 AD3d 1477, 1478 [2007]; Martin v Lattimore Rd.Surgicenter, 281 AD2d 866 [2001]). Accordingly, we remit the matter to the Supreme Court,Queens County, for a new trial before a different Justice. Fisher, J.P., Balkin, Roman and Sgroi,JJ., concur.