Summary
holding that the trial court's failure to give the jury charge was not a "fundamental" error that might warrant review in the interests of justice
Summary of this case from Henry v. N.J. Transit Corp.Opinion
2014-06-12
Randy GENET, et al., Plaintiffs–Appellants, v. Gerald B. APPEL, M.D., Defendant–Respondent.
Thomas Torto, New York for appellants. Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondent.
Thomas Torto, New York for appellants. Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondent.
Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered May 1, 2013, upon a jury verdict, in favor of defendant, and bringing up for review an order, same court and Justice, entered April 19, 2013, which denied plaintiffs' motion pursuant to CPLR 4404(a) to set aside the jury verdict, unanimously affirmed, without costs.
Plaintiffs contend that the jury verdict in this medical malpractice action should be overturned on the basis that the trial court committed fundamental error by failing to charge Education Law § 6530(32), which requires a physician to maintain proper records of his treatment and oral instructions to his patients. However, plaintiff failed to request such charge or to object to the charge that was given at trial, and thus failed to preserve the issue for appellate review ( Schaefer v. New York City Tr. Auth., 96 A.D.3d 485, 946 N.Y.S.2d 154 [1st Dept.2012]; Kroupova v. Hill, 242 A.D.2d 218, 661 N.Y.S.2d 218 [1st Dept.1997], lv. dismissed, lv. denied92 N.Y.2d 1013, 684 N.Y.S.2d 484, 707 N.E.2d 439 [1998];see also CPLR 4110–b). The trial court's omission of such a charge was not a “fundamental” error that might warrant review in the interests of justice ( cf. Peguero v. 601 Realty Corp., 58 A.D.3d 556, 563, 873 N.Y.S.2d 17 [1st Dept.2009] ).
We have considered plaintiffs' remaining contentions and find them unavailing. ACOSTA, J.P., DeGRASSE, RICHTER, MANZANET–DANIELS, FEINMAN, JJ., concur.