| Rivera v City of New York |
| 2011 NY Slip Op 00211 [80 AD3d 595] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Frances Rivera, Individually and as Administratrix of the Estate of AnnaGloria Rivera, Deceased, Appellant-Respondent, v City of New York et al.,Respondents-Appellants, et al., Defendants. |
—[*1] Salvatore J. Russo (Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y.[Edward J. Guardaro, Jr.], of counsel), for respondents-appellants.
In an action to recover damages for medical malpractice and wrongful death, the plaintiff appealsfrom (1) a judgment of the Supreme Court, Kings County (Jacobson, J.), entered September 16, 2008,and (2) so much of an amended judgment of the same court entered September 24, 2008, as, upon ajury verdict in favor of her and against the defendants City of New York, New York City Health &Hospitals Corporation, Woodhull Medical & Mental Health Center, Adedokun Akinyooye, Cynthia B.Smith-Couch, Eric Sarpong, Samuel Agyare, and Maurice Wright, failed to award damages on thecause of action alleging wrongful death against those defendants, and the defendants City of New York,New York City Health & Hospitals Corporation, Woodhull Medical & Mental Health Center,Adedokun Akinyooye, Cynthia B. Smith-Couch, Eric Sarpong, Samuel Agyare, and Maurice Wright,cross-appeal from the judgment and from so much of the amended judgment as is in favor of theplaintiff and against them in the principal sum of $3,500,000.
Ordered that the appeal and cross appeal from the judgment are dismissed, as the judgment wassuperseded by the amended judgment; and it is further,
Ordered that the amended judgment is reversed insofar as appealed from, on the law and the facts,and the matter is remitted to the Supreme Court, Kings County, for the severance of the wrongful deathcause of action and for a new trial on that cause of action on the issue of damages only against therespondents-appellants; and it is further,
Ordered that the amended judgment is affirmed insofar as cross-appealed from;and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
To establish a claim sounding in medical malpractice, a plaintiff must demonstrate that a [*2]defendant deviated or departed from good and accepted medicalpractice, and that the defendants' conduct was a proximate cause of the injuries claimed (seeDiMitri v Monsouri, 302 AD2d 420, 421 [2003]; Rodney v North Shore Univ. Hosp.,286 AD2d 382, 383 [2001]). To sustain this burden, the plaintiff must, among other things, presentexpert testimony that the defendant's conduct constituted a deviation from the requisite standard of care(see Roseingrave v Massapequa Gen. Hosp., 298 AD2d 377, 379 [2002]).
Contrary to the respondents-appellants' contention, viewing the evidence in the light most favorableto the plaintiff (see Dublis v Bosco, 71AD3d 817 [2010]), a valid line of reasoning exists by which a rational jury could have concludedthat they departed from good and accepted standards of medical care and that their conduct was asubstantial factor in causing the plaintiff's injuries (see Cohen v Hallmark Cards, 45 NY2d 493[1978]). Moreover, the jury verdict in favor of the plaintiff was not contrary to the weight of theevidence (see Johnston v Joyce, 192 AD2d 1124 [1993]; Nicastro v Park, 113AD2d 129 [1985]). "This trial was a prototypical battle of the experts, and the jury's acceptance of[plaintiff's] case was a rational and fair interpretation of the evidence" (Johnston v Joyce, 192AD2d 1124, 1125 [1993]). Further, the damages award was not excessive, as it did not deviatematerially from what would be reasonable compensation (see CPLR 5501 [c]).
We do not reach the respondents-appellants' contention that the trial court gave erroneousinstructions to the jury when the jury became deadlocked. It is the obligation of therespondents-appellants to assemble a proper record on appeal, containing all of the relevant papersthat were before the Supreme Court, plus the transcript, if any, of the proceedings (see CPLR5526). Without a complete record that includes the complained-of instructions, this Court is unable torender an informed decision on the merits of this issue (see Vandenburg & Feliu, LLP v Interboro Packaging Corp., 70 AD3d931 [2010]; Marcantonio v Picozzi,46 AD3d 522, 523 [2007]; Matison v County of Nassau, 290 AD2d 494, 495 [2002];Singh v Getty Petroleum Corp., 275 AD2d 740 [2000]).
The respondents-appellants' remaining contentions are either unpreserved for appellate review orwithout merit.
We agree with the plaintiff's contention that the trial court erred in failing to include pecuniarydamages on the verdict sheet in connection with the wrongful death cause of action. " '[I]n any wrongfuldeath action, especially one [such as here] involving a child of tender years, the absence of dollars andcents proof of pecuniary loss does not relegate the distributees to recovery of nominal damages only. . . Rather, since it is often impossible to furnish direct evidence of pecuniary injury,calculation of pecuniary loss is a matter resting squarely within the province of the jury' " (Lopez vGomez, 305 AD2d 292, 292-293 [2003], quoting Parilis v Feinstein, 49 NY2d 984, 985[1980]). Accordingly, the matter must be remitted to Supreme Court, Kings County, for a new trial onthe wrongful death cause of action on the issue of damages only against the respondents-appellants.Skelos, J.P., Eng, Hall and Lott, JJ., concur.