Opinion
2011-12-20
Theresa LOLLY, appellant, v. BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER, et al., respondents, et al., defendants.
Victor M. Serby, Woodmere, N.Y., for appellant. Bower, Monte & Greene, P.C. (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Caryn L. Lilling and Katherine Herr Solomon], of counsel), for respondents.
Victor M. Serby, Woodmere, N.Y., for appellant. Bower, Monte & Greene, P.C. (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Caryn L. Lilling and Katherine Herr Solomon], of counsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Martin, J.), entered October 2, 2009, which, upon a jury verdict on the issue of liability, and upon an order of the same court dated August 4, 2009, denying her motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial, is in favor of the defendants Brookdale University Hospital and Medical Center, Saulis Maius Banionis, and Syed Ahmed and against her dismissing the complaint insofar as asserted against those defendants.
ORDERED that the judgment is affirmed, with costs.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence ( see Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d 587, 588, 915 N.Y.S.2d 631; see generally Lolik v. Big v. Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163; Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). “Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert” ( Ferreira v. Wyckoff Hgts. Med. Ctr., 81 A.D.3d at 588, 915 N.Y.S.2d 631; see Frenchman v. Westchester Med. Ctr., 77 A.D.3d 618, 619, 909 N.Y.S.2d 107; Morales v. Interfaith Med. Ctr., 71 A.D.3d 648, 650, 896 N.Y.S.2d 394; Segal v. City of New York, 66 A.D.3d 865, 867, 887 N.Y.S.2d 624; Ross v. Mandeville, 45 A.D.3d 755, 757, 846 N.Y.S.2d 276). Contrary to the plaintiff's contention, the jury's findings in this case were based on a fair interpretation of the evidence and, thus, were not contrary to the weight of the evidence ( see Frenchman v. Westchester Med. Ctr., 77 A.D.3d 618, 909 N.Y.S.2d 107; Lovett v. Interfaith Med. Ctr., 52 A.D.3d 578, 860 N.Y.S.2d 172; Manuka v. Crenshaw, 43 A.D.3d 886, 841 N.Y.S.2d 782).
The facts adduced at trial were insufficient to warrant a jury charge on the doctrine of res ipsa loquitur. The nature of the testimony did not give rise to an inference of negligence based upon the mere occurrence of the adverse event at issue ( see Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 655 N.Y.S.2d 844, 678 N.E.2d 456; Saccone v. Gross, 84 A.D.3d 1208, 923 N.Y.S.2d 878; Sangiovanni v. Koloski, 31 A.D.3d 422, 817 N.Y.S.2d 636; Johnson v. Farr, 268 A.D.2d 560, 702 N.Y.S.2d 839; Abbott v. New Rochelle Hosp. Med. Ctr., 141 A.D.2d 589, 529 N.Y.S.2d 352).
The plaintiff's remaining contentions are without merit.