SUTTON v. KASSAPIDES

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the jury verdict is set aside, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice.

The plaintiff was deprived of a fair trial in this medical malpractice action as a result of the cumulative effect of the improper conduct of the trial court, both during cross-examination and in its charge to the jury ( see Matter of Travelers Indem. Co. v Mohammed, 14 AD3d 710; Ougourlian v New York City Health Hosps. Corp., 5 AD3d 644, 645; Perkins v New York Racing Assn., 51 AD2d 585, 586). In addition, the trial court erred in giving an "error in judgment" charge ( see Nestorowich v Ricotta, 97 NY2d 393, 399; PJI 2:150). There was no evidence that the defendant surgeon, Elias Kassapides, had to consider and choose among medically acceptable alternatives regarding the treatment of the plaintiff ( see Nestorowich v Ricotta, 97 NY2d at 399-400; Rospierski v Haar, 59 AD3d 1048, 1049; Vanderpool v Adirondack Neurosurgical Specialists, P.C., 45 AD3d 1477, 1478; Martin v Lattimore Rd. Surgicenter, 281 AD2d 866). Accordingly, we remit the matter to the Supreme Court, Queens County, for a new trial before a different Justice.