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Garcia v. Dolich

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 30, 2010

CARMEN GARCIA, PLAINTIFF-APPELLANT,
v.
BARRY DOLICH, M.D., DEFENDANT-RESPONDENT.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered February 26, 2008, dismissing this action after a jury verdict in defendant's favor, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Catterson, Moskowitz, Freedman, RomÁn, JJ.

28912/01

Despite ample evidence supporting the jury's finding that defendant was not negligent in treating plaintiff, she attributes the jury's rejection of her position largely to defense counsel's summation, claiming it was permeated with prejudicial comments intended to destroy her character and credibility and that of her expert witnesses. Notwithstanding an occasionally injudicious remark, the fact remains that counsel's summation, when viewed in the context of the entire trial, was well within the latitude afforded attorneys in advocating their cause (see People v Halm, 81 NY2d 819, 820 [1993]; Murray v Weisenfeld, 37 AD3d 432, 434 [2007]). None of these remarks -- some of which were not even objected to at trial -- were so inflammatory and prejudicial as to deprive plaintiff of a fair trial (see Wilson v City of New York, 65 AD3d 906, 908 [2009]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100330

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