Melnitzky v City of New York
2003 NY Slip Op 18415 [1 AD3d 222]
November 18, 2003
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 28, 2004


Michael Melnitzky, Appellant,
v
City of New York et al., Respondents, et al., Defendants.

— Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered October 19, 2001, which, to the extent appealed from as limited by the brief, denied plaintiff's motion for an order setting aside the verdict and granting a new trial upon the ground that his trial application to proceed pro se should have been granted, unanimously affirmed, without costs.

Plaintiff, having chosen to act through retained counsel, was barred from proceeding pro se except by consent of the court (see CPLR 321 [a]). That consent was properly withheld. Plaintiff did not request to represent himself until midtrial and the record demonstrates that permitting plaintiff, whose courtroom demeanor had been volatile and on occasion irrational, to immediately take over the representational responsibilities until then competently discharged by his attorney would have unnecessarily prolonged the trial and introduced a prohibitive risk of jury confusion and mistrial. Concur—Nardelli, J.P., Tom, Mazzarelli and Marlow, JJ.