Van Dusen v. McMaster

Hurlbutt and Scudder, JJ. (dissenting).

We respectfully dissent. The authority of a trial judge to set aside a verdict and order a new trial in the interest of justice pursuant to CPLR 4404 (a) “is predicated on the assumption that the Judge who presides at trial is in the best position to evaluate errors therein .... The Trial Judge must decide whether substantial justice has been done [and] whether it is likely that the verdict has *1059been affected [by the errors, and the Trial Judge] . . . ‘must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision’ ” (Micallef v Miehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 381 [1976]; see Levo v Greenwald, 107 AD2d 991, 992 [1985], affd 66 NY2d 962 [1985]; Barton v Youmans, 24 AD3d 1192 [2005]; Gomez v Park Donuts, 249 AD2d 266, 267 [1998]).

In our view, reversal in the interest of justice is not warranted in this case. Indeed, we cannot agree with the majority that defendants’ attorney engaged in misconduct. The record does not reflect that his question to defendants’ examining physician was intended to elicit the improper response concerning drug addiction or trafficking, which response was in any event the subject of an appropriate curative instruction. Moreover, any prejudice arising from that stricken testimony was minimized in view of the extensive evidence, received without objection at trial and not complained of on appeal, concerning the “drug-seeking behavior” of Charlene Van Dusen (plaintiff). Further, there was neither misconduct nor error in the cross-examination of plaintiff concerning alleged criminal or other conduct reflecting dishonesty, inasmuch as the record establishes that defendants’ attorney had a good faith basis for such questioning. Finally, plaintiffs’ attorney declined Supreme Court’s proffered opportunity to move for a mistrial, and thus in our view it cannot be said that “substantial justice has not been done” (Gomez, 249 AD2d at 267; see Micallef, 39 NY2d at 381; Barton, 24 AD3d 1192 [2005]). Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Gorski and Green, JJ.