| Novick v Godec |
| 2009 NY Slip Op 00360 [58 AD3d 703] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Dennis Novick et al., Respondents, v Ciril J. Godec et al.,Appellants. |
—[*1] Herzfeld & Rubin, P.C., New York, N.Y. (David B. Hamm of counsel), forrespondents.
In an action to recover damages for medical malpractice, etc., the defendants appeal, aslimited by their brief, from so much of a judgment of the Supreme Court, Kings County(Patterson, J.), entered July 23, 2007, as, upon a jury verdict on the issue of liability and a juryverdict on the issue of damages, inter alia, awarding the plaintiff Dennis Novick the principalsums of $1,000,000 for past pain and suffering and $1,500,000 for future pain and suffering, andupon an order of the same court dated February 9, 2007, denying those branches of their motionpursuant to CPLR 4404 which were to set aside the jury verdict on the issue of liability and todismiss the complaint or, in the alternative, to set aside the jury verdict on the issue of liability asagainst the weight of the evidence and for a new trial, and upon granting that branch of theirmotion which was, in effect, to reduce the amount of damages awarded as excessive only to theextent of directing a new trial on the issue of damages unless the plaintiffs stipulated, inter alia,to reduce the verdict as to those damages from the sums of $1,000,000 and $1,500,000 to thesums of $750,000, and $1,000,000, respectively, and upon the plaintiffs' stipulation to so reducethose damages, is in favor of the plaintiffs and against them.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
"To establish a prima facie case of liability in an action to recover damages for medicalmalpractice, the plaintiff must prove that the defendant deviated from accepted practice, and thatsuch deviation [*2]proximately caused his or her injuries" (Manuka v Crenshaw, 43 AD3d886, 887 [2007]; see Salmeri vBeth Israel Med. Ctr.-Kings Hwy. Div., 39 AD3d 841 [2007]). Here, the evidence waslegally sufficient to support the jury's findings that the defendants departed from good andacceptable standards of medical practice in various respects, and that such deviationsproximately caused the injured plaintiff's injuries (see Cohen v Hallmark Cards, 45NY2d 493 [1978]; Lovett v InterfaithMed. Ctr., 52 AD3d 578, 579 [2008]; Fellin v Sahgal, 35 AD3d 800 [2006]).
Further, the jury's findings in that regard were based on a fair interpretation of the evidence,and thus were not against the weight of the evidence (see Lovett v Interfaith Med. Ctr.,52 AD3d at 579; Manuka v Crenshaw, 43 AD3d at 887; Salmeri v Beth Israel Med. Ctr.-KingsHwy. Div., 39 AD3d 841 [2007]; Nicastro v Park, 113 AD2d 129, 132 [1985]).The plaintiffs presented expert testimony in support of their position and it was the province ofthe jury to determine the credibility of the expert, as well as the credibility of the defendants whotestified on their own behalf (see Bryanv Staten Is. Univ. Hosp., 54 AD3d 793 [2008]; Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831 [2005];Pace v Jakus, 291 AD2d 436 [2002]).
The damages awards, as reduced and stipulated to by the plaintiffs, do not deviate materiallyfrom what would be considered reasonable compensation (see CPLR 5501 [c];Calandrillo v East Nassau Med. Group, 186 AD2d 703 [1992]; Dopwell v City ofNew York, 227 AD2d 436 [1996]). Mastro, J.P., Miller, Angiolillo and Carni, JJ., concur.