Opinion
May 10, 1993
Appeal from the Supreme Court, Richmond County (Cusick, J.).
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff's cross appeal is dismissed as abandoned; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
Contrary to the appellants-respondents' contention, the plaintiff adduced sufficient evidence from which the jury could rationally conclude that the defendant Dr. Sisskind departed from good and accepted medical practice in not having timely ordered the setup for an immediate cesarean section under the specific circumstances of this case (see, Cohen v Hallmark Cards, 45 N.Y.2d 493, 499; Nicastro v Park, 113 A.D.2d 129, 132) and that this failure was a substantial factor in producing the infant's injuries (see, Koster v Greenberg, 120 A.D.2d 644, 645).
The appellants-respondents also contend that the jury's verdict was against the weight of the evidence. The testimony from the plaintiff's expert witness greatly conflicted with Dr. Sisskind's testimony and the testimony of the appellants-respondents' expert concerning the issues of liability and causation. According due deference to the jury's determination based upon its opportunity to observe and hear the witnesses, and weighing the conflicting testimony of the parties and their respective experts, we cannot say that the evidence so preponderated in favor of the appellants-respondents that the jury could not have reached its conclusion upon any fair interpretation of the evidence (see, Cohen v Hallmark Cards, supra; Nicastro v Park, supra, at 134-135).
The appellants-respondents also contend that the award of $650,000 for conscious pain and suffering was excessive, since the infant was in a vegetative state throughout his short, eight-year life. It is clear that a party may recover damages for nonpecuniary losses such as pain and suffering provided that the victim has "'some level of awareness'" (McDougald v Garber, 73 N.Y.2d 246, 255). However, although the infant was in a vegetative state, he cried when he received a painful stimuli, and smiled and laughed at pleasurable stimuli. Therefore, the infant clearly had some level of awareness. Furthermore, the amount of the award for pain and suffering does not materially deviate from what would be reasonable compensation (see, CPLR 5501; Canty v New York City Health Hosps. Corp., 158 A.D.2d 271; Sullivan v Locastro, 178 A.D.2d 523). Accordingly, the $650,000 award for pain and suffering was not excessive.
Lastly, the appellants-respondents assert that the plaintiff's counsel improperly cross-examined a defense witness. At trial, the plaintiff's counsel attempted to impeach the appellants-respondents' expert witness on cross-examination by reading portions of an article. Since the witness refused to admit to this article's authoritativeness, the use of this article on cross-examination was improper (see, Mark v Colgate Univ., 53 A.D.2d 884, 886; Richardson, Evidence § 373 [Prince 10th ed]). However, since the trial court sustained each of the defense counsel's objections with regard to this article and counsel did not immediately seek further relief such as curative instructions, the appellants-respondents' argument concerning this article has not been preserved for appellate review (see, Picciallo v Norchi, 147 A.D.2d 540; cf., Roveda v Weiss, 11 A.D.2d 745, 746).
We have reviewed the parties' remaining contentions and find that they are unpreserved for appellate review, without merit, or do not warrant reversal or modification of the judgment. Bracken, J.P., Ritter, Copertino and Santucci, JJ., concur.