Layton Sales & Rentals, Inc. v. Somat Realty Corp.

39 A.D.2d 640, 331 N.Y.S.2d 164, 1972 N.Y. App. Div. LEXIS 4855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1972
• Status: Published

Opinion

Judgment unanimously affirmed, without costs. Memorandum: We take note of the impropriety of comments made by counsel for Layton Sales in his summation. We do not reverse however, because there was no prejudice to Harlow Lake, in whose favor the jury resolved questions submitted. We also observe that the improper conduct was prompted by provocative remarks on the part of Harlow Lake’s attorney. Finally, no objection was made during summation when Harlow Lake could have moved for directions to counsel to desist and to the jury to disregarded. We have previously indicated that a prompt request for the interposition of the court whenever opposing counsel oversteps the bounds of propriety in his remarks is the proper method for counteracting such improprieties (Rice v. Ninacs, 34 A D 2d 388, 391; Kinne v. International Ry. Co., 100 App. Div. 5, 9; see also Dimon v. New York Cent. & Hudson Riv. R. R. Co., 173 N. Y. 356; 8 Carmody-Wait 2d, New York Practice, § 56:140). (Appeals from judgment of Erie Trial Term granting specific performance of realty contract.) Present — Del Vecchio, J. P., Marsh, Witmer, Moule and Cardamone, JJ.