Moore v. Town of Huntington

39 A.D.2d 764, 332 N.Y.S.2d 184, 1972 N.Y. App. Div. LEXIS 4548

Opinion

In a negligence action to recover damages for personal injuries, loss of services, etc., defendants appeal from an order of the Supreme Court, Suffolk County, entered July 12, 1971, which granted plaintiffs’ motion to set aside a jury verdict in defendants’ favor and granted a new trial. Order reversed, without costs, and verdict reinstated. The trial court set aside the verdict and granted a new trial on the ground that a remark by the attorney for defendant Town of Huntington, in his summation, was “ extremely prejudicial ” to plaintiffs. We disagree. Read in context, we find the subject remark only mildly improper, not seriously prejudicial. Moreover, it was only a single isolated impropriety in an otherwise clean trial and it does not appear to have influenced the jury’s verdict. If there had been any slight prejudice resulting from the remark, that prejudice was cured by the trial court’s prompt instructions to the jury to disregard it. And in addition, under the circumstances of this case, we believe plaintiffs waived their right to seek a mistrial on the ground of that allegedly prejudical remark, by not moving for that relief until after the jury had returned a verdict against them. For the foregoing reasons, we believe it was error to set aside the verdict on the stated ground. We may further note that there is adequate support in this record for the jury’s verdict and it therefore would have been improper to set it aside as against the weight of evidence. Hopkins, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.