| Mancusi v Setzen |
| 2010 NY Slip Op 04345 [73 AD3d 992] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Michael Mancusi, Appellant, v Michael Setzen et al.,Respondents. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Adonaid Casado Medina of counsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Queens County (Rosengarten, J.),dated February 6, 2009, as denied that branch of his motion pursuant to CPLR 4404 (a) whichwas to set aside the jury verdict in favor of the defendants on the issue of liability as contrary tothe weight of the evidence and for a new trial.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this medical malpractice action against his treatingotolaryngologist, the defendant Michael Setzen, and his medical practice, the defendant NorthShore Otolaryngology Associates, P.C., alleging, inter alia, that Dr. Setzen departed from goodand accepted medical practice by failing to timely recognize or test for signs of his sinus cancer.Following a jury verdict in favor of the defendants on the issue of liability, the plaintiff movedpursuant to CPLR 4404 (a), inter alia, to set aside the verdict as contrary to the weight of theevidence and for a new trial. In the order appealed from, the Supreme Court denied the motion.We affirm the order insofar as appealed from.
A jury verdict should not be set aside as contrary to the weight of the evidence unless thejury could not have reached the verdict on any fair interpretation of the evidence (seeNicastro v Park, 113 AD2d 129, 134 [1985]). "The jury's resolution of conflicting experttestimony is entitled to great weight, as it is the jury that had the opportunity to observe and hearthe experts" (Speciale v Achari, 29AD3d 674, 675 [2006]). Here, the jury's determination that Dr. Setzen did not depart fromgood and accepted medical practice in not diagnosing the plaintiff's sinus cancer sooner wasbased upon a fair interpretation of the evidence presented at trial and, thus, should not bedisturbed (see Goldberg v Sottile &Megna, M.D., P.C., 54 AD3d 359 [2008]; Casimir v Bar-Zvi, 36 AD3d 578, 578-579 [2007]; Nicastro vPark, 113 AD2d 129 [1985]).
The plaintiff's remaining contention is without merit. Fisher, J.P., Dillon, Dickerson andEng, JJ., concur.