Opinion
June 5, 1995
Appeal from the Supreme Court, Nassau County (Segal, J., Murphy, J.).
Ordered that the judgment is affirmed, with costs.
We agree with the Supreme Court's determination that there was no rational process by which a jury could have concluded that the plaintiff negligently contributed to the deterioration of his own medical condition and to the subsequent amputation of his leg (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499; Blades v Franklin Gen. Hosp., 199 A.D.2d 232). Accordingly, the court properly set aside the jury's verdict that the plaintiff was contributorily negligent.
More specifically, and contrary to the defendant's contentions, the Supreme Court properly concluded that the evidence presented with respect to the plaintiff's smoking as an instance of contributory fault consisted "merely of general conclusions, conjecture, and speculation about the physical consequences of smoking". Nor was there sufficient evidence introduced establishing that the plaintiff was ever specifically apprised of the detrimental effects continued smoking allegedly could have upon someone afflicted with his particular condition (see, Blades v. Franklin Gen. Hosp., supra, at 233; cf., Ogle v. State of New York, 191 A.D.2d 878, 881). Finally, the court correctly found that the evidence adduced with respect to the argument that the plaintiff worsened his condition by walking on his injured leg, was vague and speculative, and therefore insufficient to rationally support a finding that any such activity contributed to the plaintiff's injury. Accordingly, the court properly set aside the jury's verdict to the extent that the jury found the plaintiff to be contributorily negligent.
While the court erred in permitting the plaintiff's counsel to impeach the credibility of the defendant's expert by referring to the Physician's Desk Reference which was not conceded to be authoritative by the witness (see, e.g., Winant v. Carras, 208 A.D.2d 618; Serota v. Kaplan, 127 A.D.2d 648, 650), we find that the error was harmless under the circumstances of this case (see, Burton v. New York City Hous. Auth., 191 A.D.2d 669, 670-671; Kutanovski v. DeCicco, 152 A.D.2d 540, 541).
None of the defendant's remaining contentions warrant reversal of the judgment appealed from. Balletta, J.P., O'Brien, Thompson and Ritter, JJ., concur.