Summary
holding that "the jury returned a consistent verdict, finding that the defendant's negligence was not a substantial factor in contributing to the decedent's death."
Summary of this case from Forlastro v. CollinsOpinion
2002-02038
Argued May 21, 2003.
June 16, 2003.
In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Dunlop, J.), entered February 11, 2002, which, upon a jury verdict, is in favor of the defendant Stuart Hisler and against her dismissing the complaint insofar as asserted against that defendant.
Finz Finz, P.C., Jericho, N.Y. (Jay L. Feigenbaum of counsel), for appellant.
Dwyer Taglia, New York, N.Y. (Peter Taglia of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The plaintiff's contention that the Supreme Court should have reinstructed the jury on the issue of proximate cause after it returned an initial inconsistent verdict is not preserved for appellate review (see CPLR 4110-b; Smith v. J.C. Penney Co., 300 A.D.2d 466; Doyle v. Nusser, 288 A.D.2d 176; Alfano v. Arthur Finnegan Post 1443, Am. Legion, 250 A.D.2d 557). In any event, the Supreme Court resubmitted the special verdict sheet to the jury with limited instructions only to resolve any confusion (see Roberts v. County of Westchester, 278 A.D.2d 216, 217; Clarke v. Order of Sisters of St. Dominic, 273 A.D.2d 431; McElroy v. Yousuf, 268 A.D.2d 733, 735; Mayer v. Goldberg, 241 A.D.2d 309, 312; Peters v. Port Auth. Trans-Hudson Corp., 234 A.D.2d 205; Cortes v. Edoo, 228 A.D.2d 463, 465-466), after which the jury returned a consistent verdict, finding that the defendant's negligence was not a substantial factor in contributing to the decedent's death.
Contrary to the plaintiff's contention, the jury determination that the defendant's failure to refer the decedent to a cardiologist was not a proximate cause of the decedent's death was based upon a fair interpretation of the evidence and, accordingly, will not be set aside as against the weight of the evidence (see Roseingrave v. Massapequa Gen. Hosp., 298 A.D.2d 377; Nicastro v. Park, 113 A.D.2d 129, 134).
SANTUCCI, J.P., SMITH, McGINITY and SCHMIDT, JJ., concur.