MEHMOOD v. WONG (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Flug, J.), dated May 28, 2003, which, upon a jury verdict, is in favor of the defendant and against them, dismissing the complaint.

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice, with costs to abide the event.

Over the repeated objections of the plaintiffs' counsel, and notwithstanding the presence of an interpreter, the trial court insisted that the infant plaintiff's father, Khalid Mehmood, testify in English at the trial.   Although the court permitted the witness to request the assistance of the interpreter, as needed, on a question-by-question basis, our review of the transcript reveals that his difficulty in understanding the questions and attempting to respond to them in English was obvious and, at times, extreme, raising substantial doubts as to the jury's ability to understand his testimony.   Under these circumstances, and in light of the presence and availability of the interpreter, the procedure adopted by the court needlessly and seriously prejudiced the plaintiffs' presentation of their case, thereby depriving them of a fair trial (cf. Matter of Vladimir M., 206 A.D.2d 482, 614 N.Y.S.2d 572).

The plaintiffs' remaining contention regarding a similar ruling made with respect to another witness, the plaintiff Azra Mehmood, is unpreserved for appellate review (cf. Matter of Alvarez v. Hernandez-Pinero, 211 A.D.2d 466, 620 N.Y.S.2d 393).