Dunn v. Eickhoff

43 A.D.2d 580, 349 N.Y.S.2d 414, 1973 N.Y. App. Div. LEXIS 3122

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1973
• Status: Published

Opinions

In a negligence action to recover damages for personal injuries, loss of services, etc., plaintiffs appeal from a judgment of the Supreme Court, Rockland County, entered August 7, 1972, in favor of defendants, upon a jury verdict. Judgment affirmed, without costs. The record is clear that plaintiffs learned of the disbarment of their attorney prior to the time the case reached the jury, but failed to inform the trial court of this fact and, further, refrained from joining in the subsequent unsuccessful motion for a mistrial based on this ground, made by defendants’ attorney. Instead, plaintiffs chose to gamble on receiving a favorable verdict from the jury. That gamble having failed, plaintiffs seek by means of this appeal to obtain a new trial. There is nothing in the record before this court or in any of the arguments raised on this appeal to suggest that plaintiffs’ attorney tried this ease inadequately or incompetently or that plaintiffs were not fully and properly represented at the trial. Under these circumstances, the judgment should be affirmed. Gulotta, Christ and Brennan, JJ., concur; Shapiro, Acting P. J., dissents and votes to reverse the judgment and

grant a new trial, with the following memorandum, in which