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Virgo v. Bonavilla

Court of Appeals of the State of New York
Apr 29, 1980
49 N.Y.2d 982 (N.Y. 1980)

Opinion

Argued March 17, 1980

Decided April 29, 1980

Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, ELIZABETH W. PINE, J.

Carl L. Feinstock for appellant.

William M. Weegar for respondent.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

In this medical malpractice action, plaintiff ascertained on cross-examination that one of the members of the medical malpractice panel (see Judiciary Law, § 148-a) was an acquaintance of the defendant. Following a jury verdict of no cause of action, plaintiff moved to set aside the verdict upon the purported bias of the malpractice panel member.

In these circumstances, plaintiff waived her objection by not timely moving for a mistrial at the time the relationship between the defendant and the panel member was revealed. A party is not permitted to speculate upon a favorable verdict before asserting a claim that could properly be made during trial (see Taylor v Dayton Suregrip Shore Co., 64 A.D.2d 809, 810; Schein v Chest Serv. Co., 38 A.D.2d 929).

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

Order affirmed.


Summaries of

Virgo v. Bonavilla

Court of Appeals of the State of New York
Apr 29, 1980
49 N.Y.2d 982 (N.Y. 1980)
Case details for

Virgo v. Bonavilla

Case Details

Full title:CAROL A.P. VIRGO, Appellant, v. EDWARD J. BONAVILLA, Respondent

Court:Court of Appeals of the State of New York

Date published: Apr 29, 1980

Citations

49 N.Y.2d 982 (N.Y. 1980)

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