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KEITH CHUNG, ETC., APPELLANT, v. REHANA SHAKUR, ET AL., RESPONDENTS, ET AL., DEFENDANTS.

DECISION ORDER

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed, and it is further,

ORDERED that the respondents are awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1]).

The decision to grant or deny a mistrial is within the sound discretion of the trial court and is to be made on a case-by-case basis (see, Taylor v. Port Auth. of N.Y. N.J., 202 A.D.2d 414). "[T]he facts in each case `must be examined to determine the nature of the material placed before the jury and the likelihood that prejudice would be engendered'" (Taylor v. Port Auth. of N Y N.J., supra at 415, quoting Alford v. Sventek, 53 N.Y.2d 743, 745).

There was no evidence that the other jurors observed the involvement of the defendant physicians in the care provided to a juror who left the courtroom and became ill in the hallway (see, Brandon v. Karp, 112 A.D.2d 490, 493). Even if one or more of the other jurors had observed the intervention, the defendants' involvement was minimal and did not influence them, as was confirmed by each juror' s statement in the course of the in camera interviews, in which counsel were invited to participate.

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CHUNG v. SHAKUR
(Jun 19, 2000)