Opinion
July 3, 1997
Appeal from the Supreme Court, Erie County, Gossel, J.
Present — Green, J. P., Pine, Lawton, Boehm and Fallon, JJ.
By failing to move for a mistrial on the ground that he was denied a fair trial by the improper trial tactics of Dr. Reyes' attorney, plaintiff has failed to preserve that issue for our review ( see, Mussari v. Davidson, 93 A.D.2d 996).
There is no merit to the contention of plaintiff that the court erred in granting defendants a total of 15 peremptory challenges and allowing him only six peremptory challenges. Defendants here were not so united in interest to be considered a single party ( see, Koperda v. Town of Whitestown, 224 A.D.2d 944; Liemer v. Kings Highway Hosp. Ctr., 140 Misc.2d 94, 96-97).
The court did not err in denying plaintiff's request to charge that, if the jury found that the Hospital policy requiring the use of an electric fetal monitor during premature labor was violated, it could consider that violation as some evidence of negligence. The evidence establishes that the attending obstetricians, who were not employees of the Hospital, ordered the discontinuance of the continuous fetal monitor the day before plaintiff's daughter was born. In the absence of proof that a Hospital employee violated that Hospital policy, the request to charge was properly denied ( see, Patterson v. Cardio-Thoracic Assocs., 177 A.D.2d 934).
Plaintiff failed to appeal from the order settling the record, and we therefore do not address the issue raised by plaintiff with respect to that order.
We have considered the remaining contentions raised on appeal and conclude that they are without merit. (Appeals from Order of Supreme Court, Erie County, Gossel, J. — New Trial.)