Smith v. Rudolph

Friedman, J.P.

(concurring). In view of the unusually egregious and pervasive misconduct of defense counsel at trial, as described in the majority opinion, I concur in the affirmance of the order granting plaintiff a new trial, notwithstanding her counsel’s failure to move for an order declaring a mistrial before the verdict was rendered. I write separately, however, to note that our disposition of this appeal should not be construed as a retreat from the general principle that a party who fails to move for a mistrial before the case is submitted to the fact-finder, in spite of being aware of…