

Banks-Dalrymple v Chang (2019 NY Slip Op 00367)





Banks-Dalrymple v Chang


2019 NY Slip Op 00367


Decided on January 17, 2019


Appellate Division, First Department


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.



Decided on January 17, 2019

Renwick, J.P., Manzanet-Daniels, Gische, Mazzarelli, Kahn, JJ.


8140N 308657/11

[*1] Wanda Banks-Dalrymple, Plaintiff-Respondent,
vJudy Chang, D.D.S., et al., Defendants-Appellants.


Mauro Lilling Naparty LLP, Woodbury (Katherine Herr Solomon of counsel), for appellants.
Burns & Harris, New York (Jason S. Steinberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about February 28, 2018, which granted plaintiff's motion for sanctions, unanimously modified, on the law, to reduce the sanction award to an amount necessary to reimburse plaintiff's counsel its experts' fees, and otherwise affirmed, without costs.
Although the Court did not abuse its discretion in declaring a mistrial for defendant's counsel's violation of the court's in limine ruling, we find that a curative instruction, together with a striking of the impermissible parts of the record, would have sufficed. Accordingly, having declared the mistrial, it was a proper exercise of the court's discretion to sanction defendants' counsel, for its prejudicial questioning of plaintiff on a matter ruled inadmissable (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1; Pickens v Castro, 55 AD3d 443, 444 [1st Dept 2008]). We, however, reduce the sanctions and direct that upon receipt of proof of payment to plaintiff's experts, defendant's counsel must reimburse plaintiff's counsel within 10 days.
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 17, 2019
CLERK


