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Supreme Court, Appellate Division, Second Department, New York.

Lynne KOPLICK, etc., et al., appellants, v. Roy LIEBERMAN, etc., respondent.

Decided: March 27, 2000

GABRIEL M. KRAUSMAN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. Bernstein & Bernstein, New York, N.Y. (Ephrem Wertenteil of counsel), for appellants. Vouté, Lohrfink, Magro & Collins, LLP, White Plains, N.Y. (Elliot A. Cristantello of counsel), for respondent.

In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Bergerman, J.), dated February 19, 1999, which, upon the granting of the defendant's motion to dismiss the complaint, made at the close of the plaintiffs' case, dismissed the complaint.

ORDERED that the judgment is reversed, on the law, the motion is denied, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

 The defendant did not object to the admissibility of the testimony of the plaintiffs' expert until after that testimony was completed and the plaintiffs had rested.   Where no timely objection is made, the testimony offered is presumed to have been unobjectionable, and any alleged error considered waived (see, Horton v. Smith, 51 N.Y.2d 798, 433 N.Y.S.2d 92, 412 N.E.2d 1318;  see also, CPLR 4017).   Consequently, since the trial court dismissed the plaintiffs' case based on its improper determination that the expert's testimony could not be considered by the jury despite the waiver by the defendant, a new trial is granted.


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