Opinion
November 16, 1993
Appeal from the Supreme Court, New York County (Burton Sherman, J.).
The jury's verdict was clearly based upon a fair interpretation of the evidence and should thus not be set aside. (Delgado v Board of Educ., 65 A.D.2d 547, affd 48 N.Y.2d 643.) Indeed, there was conflicting evidence regarding whether Dr. Reich prescribed medication for plaintiff on August 4, 1987 and the jury was free to believe defendant's testimony and discredit the other witnesses' testimony and the questionable physical evidence (see, e.g., Sheps v Hall Co., 112 A.D.2d 281, 283).
We also note that plaintiff is barred from raising the issue of whether the medical malpractice statute of limitations was tolled in this case based upon an alleged June 1987 medical treatment by defendant doctor, since plaintiff stipulated at trial to limit the issue to whether defendant prescribed medication for plaintiff on August 4, 1987 (see, Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 62 N.Y.2d 999, 1002).
Concur — Sullivan, J.P., Ross, Kassal and Rubin, JJ.