| Morales v Interfaith Med. Ctr. |
| 2010 NY Slip Op 01770 [71 AD3d 648] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Iven Antonio Morales, Respondent, et al,Plaintiff, v Interfaith Medical Center et al., Appellants, et al.,Defendants. |
—[*1] Slater & Sgarlato, P.C., Staten Island, N.Y. (Robert A. Sgarlato and Thomas J. Cappello ofcounsel), for respondent, and for plaintiff Camille Morales, individually.
In an action to recover damages for medical malpractice, etc., the defendants InterfaithMedical Center and J. Kardsdon appeal from a judgment of the Supreme Court, Kings County(Jacobson, J.), entered January 3, 2008, which, upon a jury verdict finding that the infantplaintiff Iven Antonio Morales sustained damages in the principal sums of $3,500,000 for pastpain and suffering and $1,500,000 for impairment of earning ability, is in favor of the infantplaintiff Iven Antonio Morales and against them.
Ordered that the judgment is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof awarding the infant plaintiff Iven Antonio Morales damages in theprincipal sum of $3,500,000 for past pain and suffering; as so modified, the judgment isaffirmed, with costs to the defendants Interfaith Medical Center and J. Kardsdon, and a new trialis granted with respect to those damages only, unless within 30 days after service upon CamilleMorales, as guardian of the infant plaintiff Iven Antonio Morales, of a copy of this decision andorder, she shall serve and file in the office of the Clerk of the Supreme Court, Kings County, awritten stipulation consenting to reduce the verdict as to damages for past pain and sufferingfrom the principal sum of $3,500,000 to the principal sum of $600,000; in the event that CamilleMorales, as guardian of the infant plaintiff Iven Antonio Morales, so stipulates, then thejudgment, as so reduced and amended, is affirmed, without costs or disbursements.
To establish a prima facie case of liability in a medical malpractice action, the plaintiff mustprove that the defendant deviated from accepted practice, and that such deviation proximatelycaused his or her injuries (see Alvaradov Culotta, 65 AD3d 504, 506 [2009]; Novick v Godec, 58 AD3d 703 [2009]; Velonis v Vitale, 57 AD3d 657,658 [2008]; Rabinowitz v Elimian,55 AD3d 813, 814 [2008]; Lovett vInterfaith Med. Ctr., 52 AD3d 578, 579 [2008]; Manuka v Crenshaw, 43 AD3d 886, 887 [2007]). Here, theevidence was legally sufficient to support the jury's findings that the defendants InterfaithMedical Center and J. Kardsdon (hereinafter together the defendants) departed from good andacceptable standards of medical practice in various respects, and that such deviationsproximately caused the infant plaintiff's injuries (see Alvarado v Culotta, 65 AD3d at506; Novick v Godec, 58 AD3d at 704; Rabinowitz v Elimian, 55 AD3d at 814;Lovett v Interfaith Med. Ctr., 52 AD3d at 579; Manuka v Crenshaw, 43 AD3d at887). Further, the jury's findings in that regard were based on a fair interpretation of the evidenceand, thus, were not against the [*2]weight of the evidence(see Lovett v Interfaith Med. Ctr., 52 AD3d at 580; Manuka v Crenshaw, 43AD3d at 887). "Where, as here, conflicting expert testimony is presented, the jury is entitled toaccept one expert's opinion, and reject that of another expert" (Ross v Mandeville, 45 AD3d 755,757 [2007]).
Contrary to the defendants' contention, the jury's determination to award the infant plaintiffdamages for impairment of earning ability is supported by legally sufficient evidence (seeNicastro v Park, 113 AD2d 129, 132 [1985]). However, the award for past pain andsuffering deviates materially from what would be reasonable compensation, and is excessive tothe extent indicated (see CPLR 5501 [c]; Quezada v O'Reilly-Green, 24 AD3d 744, 746-747 [2005]; Miller v Weisel, 15 AD3d 458,459 [2005]; Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 783 [1998]).
The defendants' remaining contentions are without merit. Santucci, J.P., Dickerson, Eng andChambers, JJ., concur.