Opinion
January 29, 1990
Appeal from the Supreme Court, Nassau County (Becker, J.).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the defendant Mercurio is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]).
The gravamen of the instant medical malpractice action was that the defendant Mercurio failed to diagnose a condition of bacterial meningitis.
At the conclusion of the trial, the jury returned a verdict in favor of the defendant Mercurio. Thereafter, the plaintiff moved pursuant to CPLR 4404 (a) to set aside the verdict based, inter alia, on juror misconduct. Specifically, the plaintiff alleged that one of the jurors had done research on the subject of meningitis and had a copy of certain material in her possession during the jury's deliberation. A hearing was conducted, and at the conclusion thereof, the Supreme Court denied the plaintiff's motion. We affirm.
The record indicates that the copied material consisted of a definition of meningitis taken from a medical dictionary. However, the definition of meningitis was not a material issue in the instant action and the juror in question did not "really read [the definition] through" or "use it as any basis for [her] deliberations". Further, the testimony adduced at the hearing indicated that the copied material was never disseminated, in any manner, to the other jurors. Under these circumstances, the Supreme Court properly denied the plaintiff's motion to set aside the verdict (Richardson, Evidence § 407 [Prince 10th ed]; People v. Brown, 48 N.Y.2d 388, 394; People v. Sprague, 217 N.Y. 373; cf., Maslinski v. Brunswick Hosp. Center, 118 A.D.2d 834; Long v. Payne, 198 App. Div. 667). Mollen, P.J., Mangano, Kunzeman and Kooper, JJ., concur.