| Frenchman v Westchester Med. Ctr. |
| 2010 NY Slip Op 07140 [77 AD3d 618] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Cynthia Frenchman, Individually and as Executrix of Gerald Frenchman,Deceased, Respondent, v Westchester Medical Center et al., Appellants, et al.,Defendants. |
—[*1] Halperin & Halperin, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J.Isaac], of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendantsWestchester Medical Center, Richard Moggio, and Ron Smith appeal, as limited by their brief, from(1) so much of a judgment of the Supreme Court, Westchester County (Colabella, J.), dated April 9,2008, as, after a jury trial, is in favor of the plaintiff and against them, (2) so much of an order of thesame court entered December 22, 2008, as denied those branches of their motion which were pursuantto CPLR 4404 (a) to set aside the jury verdict and for judgment as a matter of law or, alternatively, toset aside the jury verdict as contrary to the weight of the evidence and for a new trial or, alternatively,to set aside, as excessive, the verdict on the issue of damages and for a new trial on the issue ofdamages, and the defendants Westchester Medical Center, Westchester County Health CareCorporation, Richard Moggio, and Ron Smith appeal, as limited by their brief, (3) from so much of anamended judgment of the same court entered March 30, 2009, as, upon the order entered December22, 2008, is in favor of the plaintiff and against them in the principal sums of $1,000,000 for past painand suffering, $150,000 for past loss of services, $450,000 for past wrongful death damages, and$110,000 for future wrongful death damages.
Ordered that the appeals from the order and the judgment are dismissed; and it is further,
Ordered that the amended judgment is affirmed insofar as appealed from; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen considered on the appeal from the amended judgment (see CPLR 5501 [a] [1]). Theappeal from the judgment is dismissed, as the judgment was superseded by the amended judgment.[*2]
For a court to conclude as a matter of law that a jury verdict isnot supported by sufficient evidence, it must determine that there is "no valid line of reasoning andpermissible inferences which could possibly lead rational [people] to the conclusion reached by the juryon the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]). Here, the jury verdict finding that the appellants departed from good and accepted standardsof medical practice in their treatment of the decedent was supported by the testimony of the plaintiff'sexperts and, therefore, was not irrational. Further, the jury's findings were based on a fair interpretationof the evidence and, thus, were not contrary to the weight of the evidence (see Lovett v Interfaith Med. Ctr., 52 AD3d578, 580 [2008]; Manuka vCrenshaw, 43 AD3d 886, 887 [2007]). "Where, as here, conflicting expert testimony ispresented, the jury is entitled to accept one expert's opinion, and reject that of another expert" (Ross v Mandeville, 45 AD3d 755, 757[2007]; see Steginsky v Gross, 46 AD3d671, 672 [2007]; Lalanne v NyackHosp., 45 AD3d 645, 646 [2007]; Clarke v Limone, 40 AD3d 571, 572 [2007]; Vona v Wank,302 AD2d 516, 517 [2003]).
The appellants' contention that the verdict was inconsistent is unpreserved for appellate review,since they concede that they did not raise it before the jury was discharged (see Barry vManglass, 55 NY2d 803, 806 [1981]; Steginsky v Gross, 46 AD3d 671, 672 [2007]).
The award of damages did not deviate materially from what would be reasonable compensation(see CPLR 5501 [c]).
The appellants' remaining contention is without merit. Rivera, J.P., Dickerson, Eng and Austin, JJ.,concur.