Dunne v. Lemberg

54 A.D.2d 955, 388 N.Y.S.2d 635, 1976 N.Y. App. Div. LEXIS 14862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1976
• Status: Published

Opinion

In consolidated negligence actions to recover damages for personal injuries, etc., plaintiffs Tamara and Gloria Dunne appeal from (1) so much of an interlocutory judgment of the Supreme Court, Kings County, entered August 1, 1975, as is in favor of defendant Masse and against them, upon a jury verdict after a trial limited to the issue of liability only, and (2) an order of the same court, dated August 28, 1975, which denied their motion to set aside the verdict insofar as it is in favor of defendant Masse and against them. Interlocutory judgment affirmed insofar as appealed from and order affirmed, without costs or disbursements. Although the remarks of defendant Masse’s attorney, in summation, with respect to race were highly improper, we concur with the trial court’s determination that such remarks, for which said attorney was quickly admonished and the jury given corrective instructions, did not influence the verdict. The trial herein was remarkably free of any significant error, the verdict is amply supported by the evidence, which presented the jury with a sharp but clear issue of fact, and, in our view, appellants’ counsel, in effect, waived his objection to the remarks of defendant Masse’s attorney by not moving for a mistrial until after the jury had returned its verdict in said defendant’s favor (the second defendant, Mr. Lemberg, was found liable to appellants) (see, e.g., Moore v Town of Huntington, 39 AD2d 764). Latham, Acting P. J., Margett, Titone and Mollen, JJ., concur.