I was surprised to learn from the Law Journal's appellate practice column entitled “Pyrrhic Victories Are to Be Avoided” (NYLJ, July 3), that the Appellate Division, First Department, reached completely different legal conclusions in two cases containing virtually identical factual and legal issues; one of which I was the appellate counsel for.

Namely, the article cites Smith v. Rudolph, 2017 N.Y. Slip Op 2957 (1st Dept. 2017), wherein the First Department exercised its broad interest of justice jurisdiction to affirm the grant of a new trial because of the defense counsel's misconduct, even though the plaintiff's counsel had failed to move for a mistrial before the jury returned its verdict for the defendant.

Having researched Smith v. Rudolph, 2017 N.Y. Slip Op 2957 (1st Dept. 2017), it is evident that this very legal issue was the exact same legal issue that I encountered as appellate counsel for the appellant in Bertram v. Columbia Presbyt./NY Presbyt. Hosp., 126 A.D.3d 473, 2 N.Y.S.3d 790 (1st Dept. 2015), but unfortunately involved a different judicial panel that reached a different and inconsistent legal conclusion.