KENNEDY v. CHILDREN HOSPITAL OF BUFFALO (2001)

 Plaintiff appeals from a judgment dismissing the complaint following a jury verdict of no cause of action.   She contends that she was denied a fair trial by the misconduct of defendant's attorney.   Although that contention is not preserved for our review (see, Califano v. City of New York, 212 A.D.2d 146, 152-153, 627 N.Y.S.2d 1008), we conclude that the misconduct of defendant's attorney throughout the trial and particularly during summations deprived plaintiff of a fair trial, and thus we reverse the judgment in the interest of justice, reinstate the complaint and grant a new trial (see generally, Breitung v. Canzano, 238 A.D.2d 901, 660 N.Y.S.2d 765).   Throughout the course of the trial, defendant's attorney refused to abide by Supreme Court's rulings and continued to object and argue with the court after the rulings were made.   He badgered plaintiff's attorney and constantly interrupted witnesses, not allowing them to complete their responses to his questions.   He interrupted the summation of plaintiff's attorney more than 30 times to make groundless objections and commented in the presence of the jury that the arguments of plaintiff's attorney were “preposterous” and “absolutely objectionable”.   The egregious misconduct of defendant's attorney precluded the jury from considering closely contested issues “ ‘in the calm and untrammeled spirit necessary to effect justice’ ” (Schaffer v. Kurpis, 177 A.D.2d 379, 380, 576 N.Y.S.2d 237, quoting Kamen Soap Prods. Co. v. Prusansky & Prusansky, 11 A.D.2d 676, 201 N.Y.S.2d 875) and thus “precluded proper resolution of the central issue[s] in the case” (Breitung v. Canzano, supra, at 902, 660 N.Y.S.2d 765;  see, Poole v. Consolidated Rail Corp., 80 N.Y.2d 184, 198, 590 N.Y.S.2d 1, 604 N.E.2d 63, rearg. denied 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298, cert. denied 510 U.S. 816, 114 S.Ct. 68, 126 L.Ed.2d 37, rearg. dismissed 82 N.Y.2d 921, 610 N.Y.S.2d 156, 632 N.E.2d 466).

 Inasmuch as we are granting a new trial, we need not address plaintiff's remaining contentions.   We reject the contention of defendant that the court abused its discretion in precluding its use of plaintiff's medical records pursuant to CPLR 3103(c) on the ground that those records were obtained without authorization.

Judgment unanimously reversed in the interest of justice without costs, complaint reinstated and new trial granted.

MEMORANDUM: