Opinion
(743) CA 00-02688
July 3, 2001.
Appeal from Judgment of Supreme Court, Erie County, Kane, J. — Negligence.
Judgment unanimously affirmed without costs.
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, SCUDDER AND LAWTON, JJ.
Memorandum:
Supreme Court properly granted plaintiff's request to charge the doctrine of res ipsa loquitur with respect to defendants LCA Vision, Inc. and Claus M. Fichte, M.D. ( see, Fogal v. Genesee Hosp., 41 A.D.2d 468, 474-477). In order to establish his entitlement to that charge, plaintiff was not required to eliminate conclusively "the possibility of all other causes of the injury. It [was] enough that the evidence * * * afford[ed] a rational basis for concluding that 'it [was] more likely than not' that the injury was caused by [the] negligence [of those defendants]" ( Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, quoting Restatement [Second] of Torts § 328 D, comment e]). The award of damages for future pain and suffering for plaintiff's eye injury does not deviate materially from what would be reasonable compensation ( see, CPLR 5501 [c]; Galawanji v. 40 Sutton Place Condominium, 262 A.D.2d 55, lv denied 94 N.Y.2d 756).