Wallace v. Booth Memorial Hospital

163 A.D.2d 917, 559 N.Y.S.2d 848, 1990 N.Y. App. Div. LEXIS 16787

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1990
• Status: Published

Opinion

Judgment unanimously affirmed with costs. Memorandum: Although counsel improperly appealed to the jury’s sympathy in his comments on summation that an unfavorable verdict would brand defendant as a killer and destroy his life, these isolated remarks did not deprive plaintiff of a fair trial (see, Moore v Town of Huntington, 39 AD2d 764; Weinstein v Prostkoff, 13 AD2d 539). We reject plaintiff’s argument that defense counsel’s direct examination of expert witness Dr. Joseph Buda was leading or suggestive. Plaintiff’s remaining contentions, that defense counsel made prejudicial comments regarding decedent’s alcoholism during summation and that the trial court erred in permitting Dr. Buda to provide cumulative evidence, have not been preserved for our review. (Appeal from judgment of Supreme Court, Queens County, Durante, J.—wrongful death.) Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.