Opinion
April 26, 1999
Appeal from the Supreme Court, Rockland County (Bergerman, J.). upon the denial of his motion pursuant to CPLR 4404 (a) to set aside the verdict, is in favor of the plaintiff Susan Marsha Grasso and against him in the principal sum of $90,000.
Ordered that the judgment is affirmed, with costs.
The trial court did not err in refusing to give the "error of judgment" charge contained in PJI 2:150. There was no evidence that the defendant, a surgeon, had to consider and choose among medically-acceptable alternatives regarding the treatment of the plaintiff. Accordingly, under the circumstances of this case, the defendant was not required to exercise the type of medical judgment which would warrant the giving of the "error of judgment" charge ( see, Spadaccini v. Dolan, 63 A.D.2d 110; cf., Capolino v. New York City Health Hosps. Corp., 199 A.D.2d 173; Brault v. Kenmore Mercy Hosp., 142 A.D.2d 945).
Santucci, J. P., Sullivan, Florio and McGinity, JJ., concur.