Opinion
June 19, 1978
In a medical malpractice action, the plaintiffs appeal from (1) a judgment of the Supreme Court, Kings County, entered April 25, 1977 in favor of defendant Dr. Aziz B. Zade and against them, upon a jury verdict and (2) an order of the same court, dated March 22, 1977, which denied their motion to set aside the verdict. Appeal from the order dismissed, without costs or disbursements (Matter of Aho, 39 N.Y.2d 241, 248). Judgment affirmed, without costs or disbursements. After thoroughly examining the transcript of the trial, in particular the statements made by defendant Zade and his counsel, which plaintiffs contend prejudiced them severely in the eyes of the jurors, it is our opinion that the plaintiffs received a fair and proper trial. These statements, which are the basis of the plaintiffs' appeal, were not prejudicial. It would appear that the jurors reached their verdict after due and proper consideration of the evidence presented to them. In any case, plaintiffs' failure to move for a mistrial on the ground which they now claim constituted prejudicial and reversible error amounted to a waiver of this objection (see Reilly v Wright, 55 A.D.2d 544; Dunne v Lemberg, 54 A.D.2d 955, mot for lv to app den 40 N.Y.2d 809; Schein v Chest Serv. Co., 38 A.D.2d 929). Martuscello, J.P., Suozzi, Rabin and Hawkins, JJ., concur.