Opinion
November 20, 1973
Order, Supreme Court, New York County, entered on February 7, 1972, inter alia, denying defendant Sze's motion for a new trial, unanimously reversed, on the law and in the interests of justice, and said motion granted, with $60 costs and disbursements of this appeal to abide the event. In this medical malpractice action, the cross-examination of certain defense witnesses took less time than was anticipated, and was concluded before appellant's sole expert witness (a vascular surgeon), who was then enroute, arrived at the courthouse. Since it was then 10 minutes past noon, defense counsel asked the court for an earlier than usual lunch recess. The request was denied and summation directed. The expert arrived shortly after appellant's counsel began his summation "under protest". Nevertheless, the trial court refused to allow the witness to testify then, or to reopen the case after the lunch recess and before summation by other counsel. In the circumstances here presented, especially in view of the nature of the action, the court's refusal to grant appellant's reasonable requests constituted reversible error. (Cf. Murphy v. City of New York, 273 App. Div. 492.) Since a new trial is required, we find it unnecessary to pass upon the other assignments of error raised hereon.
Concur — Stevens, P.J., McGivern, Nunez, Murphy and Capozzoli, JJ.