Legal Decisions of Note – Week of July 8 – 13, 2022 

This is a recent case decision regarding medical malpractice that we think is interesting. The firm of Sholes & Miller is not involved in this matter.  


Bhim v. Platz (Appellate Division 2nd Dept. July 13, 2022): During summation in this Nassau County medical malpractice case, defense counsel displayed a printed enlargement of the written testimony of the plaintiff’s expert witness, claiming the expert had responded affirmatively to a certain question. During jury deliberations, it emerged that the enlargement omitted colloquy and a second half of the question that was between the first part of the question, and the answer. The court called the jury back to the courtroom and provided a read-back of the complete testimony. Plaintiffs’ counsel moved to set aside the verdict on the grounds they were deprived of a fair trial, and for a judgment pursuant to CPLR 3001 declaring defense counsel had committed a fraud on the court. The motions were denied, and plaintiffs appealed. 2nd Dept. noted, “while defense counsel’s misrepresentation of the subject trial testimony during his summation was, at a minimum, inexcusably careless, it did not constitute a fraud on the court. Generally, an isolated incident of misconduct will not rise to the level of a fraud on the court particularly where, as here, the alleged fraud occurred in the context of a summation, which does not constitute evidence.” The Appellate Division held counsel’s conduct was not so pervasive or prejudicial as to have deprived the plaintiffs of a fair trial, and the Court had appropriately cured the issue by reading back the correct testimony. The declaratory relief sought was properly denied, as it did not relate to a dispute between the parties involving substantial legal interests for which a declaration of rights would have some practical effect, and as such there was no justiciable controversy under CPLR 3001.

Source: NYS Law Reporting Bureau, NY Official Reports, Slip Opinion Service

Submitted by Ellen A. Fischer, Sholes & Miller, PLLC