Bonilla v. New York City Health and Hospitals

Full title: DOMINICK BONILLA et al., Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 1, 1996

229 A.D.2d 371 (N.Y. App. Div. 1996)

644 N.Y.S.2d 655

Opinion

July 1, 1996

Appeal from the Supreme Court, Kings County (Clemente, J.).

Ordered that the order is affirmed, with costs.

By expressly stating they did not want to move for a mistrial in advance of the verdict, the plaintiffs waived their current objections to the comment in question ( see, CPLR 4404 [a]; Mathews v. Coca-Cola Bottling, 188 A.D.2d 590; Kamen v. City of New York, 169 A.D.2d 705, 706). "Counsel may not be permitted to speculate upon whether a verdict will be favorable, before asserting a claim for a mistrial. Such a motion must be made in advance of the verdict" ( Schein v. Chest Serv. Co., 38 A.D.2d 929; see also, Virgo v. Bonavilla, 49 N.Y.2d 982). Miller, J.P., Pizzuto, Santucci and Hart, JJ., concur.