Opinion
Argued February 18, 2000
March 30, 2000
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.
Bernstein Bernstein, New York, N.Y. (Ephrem Wertenteil of counsel), for appellants.
Vout A. Cristantello of counsel), for respondent. Plains, N.Y. (Elliot A. Cristantello of counsel), for respondent.
GABRIEL M. KRAUSMAN, J.P., HOWARD MILLER, ROBERT W. SCHMIDT, NANCY E. SMITH, JJ.
DECISION ORDER
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 ; 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.
KRAUSMAN, J.P., H. MILLER, SCHMIDT, and SMITH, JJ., concur.