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MINEOLA, N.Y. � Citing improper conduct by a state Supreme Court justice, the Appellate Division, Second Department, has reversed a verdict for the defense in a medical malpractice case. The court found that jurors were unable to weigh the evidence in a “calm and unprejudiced manner” due to the judge’s behavior. The decision will be published Monday. In a March 22 unsigned decision, the appeals panel found that Queens Supreme Court Justice Luther V. Dye, who agreed to retire last year after a Commission on Judicial Conduct investigation, denied the plaintiff a fair trial “by virtue of the cumulative effect of the improper conduct of the trial court.” The panel determined that the judge’s conduct before testimony began, during direct and cross examinations and after the close of the evidence undermined the plaintiff’s chances for a fair trial. Plaintiff Philip Ougourlian will receive a new trial to determine if the New York City Health and Hospitals Corp. was negligent in the treatment he received at Elmhurst Hospital Center for a broken hip he suffered after falling in a Queens subway station. The jury previously found in favor of the defendant on the issue of liability in Ougourlian v. New York City Health and Hospitals Corp., 14661-97. The Commission on Judicial Conduct ordered a public censure for comments Justice Dye made to Mr. Ougourlian’s attorney, Steven B. Samuel, and in a second case. The judge, then 69, agreed to retire and not seek certification to serve on the bench past 70. Last year’s censure was the second Justice Dye had received since he started serving as the Supreme Court bench in 1994. In the Ougourlian matter, the commission found that Justice Dye, while in the courtroom, asked Mr. Samuel if he was Jewish after a heated exchange between the two. Two days later, when Mr. Samuel asked the judge in court why he wanted to know if he was Jewish, the judge replied: “I was born and bred in North Carolina. I saw no Jewish people, none. . . . The only Chinese people I saw were in the laundry. I never saw a Jewish person. I never saw a temple. I never saw a synagogue. Didn’t know what it was. I thought everybody went to church.” The second case that led to the censure involved a mother who sought relief from the court to use $6,000 from a negligence judgment her daughter received to pay for Catholic school tuition. In denying her request, Judge Dye asked the petitioner if she read about the scandals regarding priests in the Roman Catholic Church. He said he would not send his children to Catholic school. Justice Dye also was censured in 1998 for making sexual remarks to a secretary. The appellate court found that Mr. Ougourlian did not get an impartial trial. “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,” the decision said. “As a result of such conduct, the jury could not have considered the issues at trial in a fair, calm, and unprejudiced manner.” “Now the Appellate Division has reaffirmed my faith in the justice system,” Mr. Samuel said. His practice, Samuel & Weininger, is in Lake Success. Attorney Francis F. Caputo, with the New York City Corporation Counsel, represented the New York City Health and Hospitals Corp. His office was unavailable for comment. David L. Cohen, an attorney who represented Justice Dye last year before the commission, said the judge has retired from practice. Sitting on the appeals panel were Justice Nancy E. Smith, Justice Gloria Goldstein, Justice William F. Mastro and Justice Reinaldo E. Rivera.

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