Opinion
2012-08-29
Stephanie BELLUARDO, et al., appellants, v. STATE of New York, respondent.
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Sudarsana Srinivasan of counsel), for respondent.
Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for appellants. Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek and Sudarsana Srinivasan of counsel), for respondent.
In a claim to recover damages for medical malpractice, etc., the claimants appeal from a judgment of the Court of Claims (Lack, J.), dated November 12, 2010, which, upon a decision of the same court dated September 24, 2010, made after a nonjury trial, is in favor of the defendant and against them, dismissing the claim. The notice of appeal from the decision is deemed a notice of appeal from the judgment ( seeCPLR 5512[a] ).
ORDERED that the judgment is affirmed, with costs.
“ ‘In reviewing a determination made after a nonjury trial, this Court's power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses' ” ( Havel v. Goldman, 95 A.D.3d 1174, 1175, 945 N.Y.S.2d 332, quoting BRK Props., Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 A.D.3d 883, 884, 933 N.Y.S.2d 99;see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Crawford v. Village of Millbrook, 94 A.D.3d 1036, 1037–1038, 943 N.Y.S.2d 180). To prevail at trial in this claim to recover damages for medical malpractice, the claimants were required to prove their case by a preponderance of the evidence ( see Eisenberg v. State of New York, 79 A.D.3d 795, 795, 912 N.Y.S.2d 436, citing Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 550, 684 N.Y.S.2d 139, 706 N.E.2d 1163;see Goldberg v. Horowitz, 73 A.D.3d 691, 694, 901 N.Y.S.2d 95;Johnson v. Jacobowitz, 65 A.D.3d 610, 613, 883 N.Y.S.2d 730;Speciale v. Achari, 29 A.D.3d 674, 815 N.Y.S.2d 157). Contrary to the claimants' contention, the evidence preponderated in favor of the defendant ( see Eisenberg v. State of New York, 79 A.D.3d at 796, 912 N.Y.S.2d 436). Additionally, as the Court of Claims correctly determined, the evidence did not show that the doctrine of res ipsa loquitur applied to this case ( see Yousefi v. Rudeth Realty, LLC, 61 A.D.3d 677, 877 N.Y.S.2d 132;see generally Dermatossian v. New York City Tr. Auth., 67 N.Y.2d 219, 226, 501 N.Y.S.2d 784, 492 N.E.2d 1200;Antoniato v. Long Is. Jewish Med. Ctr., 58 A.D.3d 652, 654–655, 871 N.Y.S.2d 659). Accordingly, the Court of Claims properly dismissed the claim.
The claimants' remaining contentions are without merit.