In Torrado v Lutheran Med. Ctr. (198 AD2d 346 [2d Dept 1993]), defense counsel argued that defendant was entitled to a new trial because of alleged inflammatory comments made by plaintiff's counsel in his summation.Summary of this case from Searcy v. N.Y.C. Transit Auth.
November 15, 1993
Appeal from the Supreme Court, Kings County (Bellard, J.).
Ordered that the interlocutory judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
We conclude, as did the trial court, that the jury's award was excessive (see, CPLR 5501 [c]). The trial court, therefore, did not improvidently exercise its discretion in setting aside the award and granting a new trial solely on the issue of damages (see, Richardson v Lutheran Hosp., 70 A.D.2d 933; see also, Nicastro v Park, 113 A.D.2d 129).
The defendant contends that it is also entitled to a new trial on the issue of liability on the ground that certain comments in the plaintiff's closing argument were highly inflammatory. Specifically, the defendant contends that it was improper for the plaintiff's counsel to ask the jury to consider the response of the decedent's children if they were told "We'll give you all the riches of the world but the price to you, to the children, is that we are going to poison your mother, we're going to kill your mother". The court sustained an objection to the remarks and instructed the jury to disregard them.
This issue is not preserved for appellate review, as no additional curative instructions were requested and no motion for a mistrial was made with respect to these particular remarks (see, Kamen v City of New York, 169 A.D.2d 705; Dunne v Lemberg, 54 A.D.2d 955). In any event, while we agree with the defendant that these remarks were improper, we find that reversal of the liability verdict is not warranted, as this misconduct did not divert the jurors' attention from the issues to be determined with respect to liability or deprive the defendant of a fair trial (see, Kamen v City of New York, supra; John v Supermarket Gen. Corp., 116 A.D.2d 625; cf., Vassura v Taylor, 117 A.D.2d 798). Lawrence, J.P., Eiber, O'Brien and Santucci, JJ., concur.