Joan L. Sutton, appellant, v. Elias Kassapides, respondent, et al., defendants. (2010)

Argued-April 23, 2010

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated February 18, 2009, which denied her motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the defendant Elias Kassapides, and for a new trial.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the jury verdict is set aside, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice.

The plaintiff was deprived of a fair trial in this medical malpractice action as a result of the cumulative effect of the improper conduct of the trial court, both during cross-examination and in its charge to the jury (see Matter of Travelers Indem.   Co. v Mohammed, 14 AD3d 710;  Ougourlian v New York City Health & Hosps.   Corp., 5 AD3d 644, 645;  Perkins v. New York Racing Assn., 51 A.D.2d 585, 586).   In addition, the trial court erred in giving an “error in judgment” charge (see Nestorowich v. Ricotta, 97 N.Y.2d 393, 399 n 4;  PJI 2:150).   There was no evidence that the defendant surgeon, Elias Kassapides, had to consider and choose among medically acceptable alternatives regarding the treatment of the plaintiff (see Nestorowich v. Ricotta, 97 N.Y.2d at 399-400;  Rospierski v. Haar, 59 AD3d 1048, 1049;  Vanderpool v Adirondack Neurosurgical Specialists, P.C., 45 AD3d 1477, 1478;  Martin v. Lattimore Rd. Surgicenter, 281 A.D.2d 866).   Accordingly, we remit the matter to the Supreme Court, Queens County, for a new trial before a different Justice.

FISHER, J.P., BALKIN, ROMAN and SGROI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court