Opinion
November 19, 1991
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
Upon our review of the entire record in this dental malpractice action, we conclude that the egregious misconduct of defendant's counsel, including her interjection of plaintiff-patient's alleged use of cocaine without the slightest good faith basis, and the equally specious and prejudicial impeachment of one of plaintiff's experts, deprived plaintiff of the fair trial to which she was entitled (Popplewell v. Clark, 22 A.D.2d 1014). Likewise counsel's willful defiance of court rulings — a continuous course of conduct throughout the trial resulting in acrimonious and escalating exchanges with the bench — undoubtedly served to divert the jury's attention from the genuine and closely contested issues (Mercurio v. Dunlop, Ltd., 77 A.D.2d 647).
Moreover it also appears that the Trial Justice, whether or not provoked by counsel's misconduct, "so far injected himself into the proceedings that the jury could not review the case in the calm and untrammelled spirit necessary to effect justice" (Kamen Soap Prods. Co. v. Prusansky Prusansky, 11 A.D.2d 676). Particularly, the fencing match indulged in by the court with plaintiff's expert witness, Dr. Lenchewski, as well as its unwarranted interventions repeated with virtually every other witness, could not have failed to impress upon the jury the court's prevailing skepticism as to the merits of plaintiff's case, and the cumulative effect of this conduct rose to the level of reversible error (Siefring v. Marion, 22 A.D.2d 765; Salzano v City of New York, 22 A.D.2d 656; Lopez v. Linden Gen. Hosp., 89 A.D.2d 1010).
Concur — Carro, J.P., Milonas, Ellerin, Wallach and Ross, JJ.