Opinion
March 29, 1971
In a negligence action to recover damages for personal injuries, plaintiff appeals from (1) a judgment of the Supreme Court, Kings County, entered October 9, 1968, in favor of defendants against plaintiff upon a jury verdict, and (2) an order of the same court entered September 4, 1968, which denied plaintiff's motion to set aside the verdict and for a new trial. Appeal from order dismissed, without costs. An order denying a motion to set aside a verdict and for a new trial, made only on the trial minutes, is not appealable. Judgment reversed, on the law, and new trial granted, without costs. The court has considered the questions of fact and has determined that it would not grant a new trial upon those questions. In our opinion, counsel for defendants Voyiazis engaged in certain prejudicial conduct and questioning, the net effect of which, in a case as close as this one, was to deprive plaintiff of a fair trial. For example, on cross-examination, plaintiff was asked about a "lying" problem allegedly affecting one of his children several years prior to the trial. The question involved a remote matter and was irrelevant and objection to it by plaintiff was sustained. Despite this, the question was repeated and again objection was sustained. Also, the same counsel called as a witness a psychiatrist who allegedly had treated plaintiff in 1960. This was improper, because it would have involved disclosure of confidential information (CPLR 4504). The bringing of the instant lawsuit in no way constituted a waiver by plaintiff of the privilege afforded as to information arising from a totally unconnected illness and treatment. As it turned out, the psychiatrist did not testify, because he had no recollection of treating plaintiff and the medical report offered by counsel could not be identified as plaintiff's. It might be said that, therefore, plaintiff was not prejudiced. We feel the opposite is true, namely, that the jury was improperly influenced by the abortive and, as it turned out, unfounded attempt to elicit damaging medical testimony. Finally, on cross-examination, plaintiff's wife was asked about plaintiff's alleged dishonorable discharge from the Army. Again, after objection was sustained, this improper question was repeated (see Ward v. Thistleton, 32 A.D.2d 846). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.