Opinion
CA 01-02325
October 1, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Livingston County (Alonzo, J.), entered January 5, 2001, which denied plaintiffs' motion to set aside the jury verdict and directed that judgment be entered in favor of defendant.
JOHN A. SCHUPPENHAUER, CANANDAIGUA, FOR PLAINTIFFS-APPELLANTS.
BROWN TARANTINO, LLP, ROCHESTER (THOMAS BERNACKI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, HAYES, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
In this medical malpractice action, plaintiffs appeal from an order denying their motion pursuant to CPLR 4404 (a) seeking to set aside the jury verdict of no cause for action as contrary to the weight of the evidence and directing entry of judgment in favor of defendant. The parties treat the appeal as from a final judgment, and in the exercise of our discretion we do likewise ( see Kuhns v. Millard Fillmore Hosps., 296 A.D.2d 839 [July 3, 2002]; Hughes v. Nussbaumer, Clarke Velzy, 140 A.D.2d 988, 988; see generally CPLR 5520 [c]). Plaintiffs contend that Supreme Court erred in admitting testimony from a defense witness whose name was not revealed during jury selection and that the verdict is contrary to the weight of the evidence.
Contrary to plaintiffs' contention, reversal is not required based on the court's admission of the testimony of the previously undisclosed defense witness ( cf. Sheppard v. Blitman/Atlas Bldg. Corp., 288 A.D.2d 33, 35; Rivera v. City of New York, 253 A.D.2d 597, 601; Stevens v. Brown, 249 A.D.2d 909, 910; Malcolm v. Darling, 233 A.D.2d 425, 426). There is no indication that the witness had any prohibited acquaintance with or relationship to a juror, and plaintiffs otherwise sustained no prejudice as a result of the court's ruling.
Contrary to plaintiffs' further contention, the evidence does not so preponderate in favor of plaintiffs that the verdict could not have been reached upon any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746; Paterson v. Ellis, 284 A.D.2d 981; Cardin v. Christie, 283 A.D.2d 978; Dannick v. County of Onondaga, 191 A.D.2d 963, 964). Thus, the court properly denied plaintiffs' motion to set aside the verdict as contrary to the weight of the evidence ( see CPLR 4404 [a]).