OUGOURLIAN v. NEW YORK CITY HEALTH HOSPITALS

ORDERED that the judgment is reversed, on the law and as a matter of discretion, the motion is granted, the complaint is reinstated, and a new trial is granted, with costs to abide the event.

The plaintiffs were denied a fair trial in this medical malpractice action by virtue of the cumulative effect of the improper conduct of the trial court, before testimony began, during the plaintiffs' direct case, cross-examination of the defense witness, and after the close of the evidence. As a result of such conduct, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner ( see Perkins v. New York Racing Assn., 51 A.D.2d 585, 586; Habenicht v. R.K.O. Theatres, 23 A.D.2d 378; Livant v. Adams, 17 A.D.2d 784). Under the circumstances, the plaintiffs were not afforded a fair trial. Accordingly, a new trial is warranted. In addition, we note that the trial court should have given a circumstantial evidence charge.

The plaintiffs' remaining contentions either are without merit or have been rendered academic in light of our determination.

SMITH, J.P., GOLDSTEIN, MASTRO and RIVERA, JJ., concur.