| Allen v Uh |
| 2011 NY Slip Op 02338 [82 AD3d 1025] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Ann Allen, Appellant, v Benjamin S. Uh et al.,Respondents. |
—[*1] Wagner Doman & Leto, P.C., Mineola, N.Y. (Daniel F. Doman of counsel), forrespondents.
In an action to recover damages for medical malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Nassau County (Feinman, J.), entered February 16, 2010, which,upon a jury verdict, and upon the denial of her motion pursuant to CPLR 4404 (a) to set aside theverdict and for a new trial in the interest of justice, is in favor of the defendants and against herdismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff contends that the trial court erred in denying her motion pursuant to CPLR 4404(a) to set aside the verdict and for a new trial in the interest of justice based on several errorscommitted by the trial court.
A motion pursuant to CPLR 4404 (a) to set aside a verdict and for a new trial in the interestof justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakesin the charge, misconduct, newly discovered evidence, and surprise (see Matter of DeLano, 34 AD2d 1031, 1032 [1970], affd 28 NY2d 587 [1971]; see also Rodriguez v City of NewYork, 67 AD3d 884, 885 [2009]; Gomez v Park Donuts, 249 AD2d 266, 267[1998]). The trial court must decide whether substantial justice has been done, and must look tocommon sense, experience, and sense of fairness in arriving at a decision (see Micallef vMiehle Co., Div. of Miehle-Goss Dexter, 39 NY2d 376, 381 [1976]; Bush v InternationalBus. Machs. Corp., 231 AD2d 465 [1996]). Here, the trial court did not err in denying theplaintiff's motion. The issues raised by the plaintiff did not constitute error, and did not depriveher of substantial justice.
Contrary to the plaintiff's contention, testimony offered regarding the effects of smoking onher injuries was based on facts in the record and expert analysis, not mere speculation.Accordingly, the trial court did not err in denying the plaintiff's application to strike thetestimony of the defendants' witnesses regarding the effects of smoking (see Plainview Water Dist. v Exxon MobilCorp., 66 AD3d 754 [2009]; Shi Pei Fang v Heng Sang Realty Corp., 38 AD3d 520 [2007]), andin refusing to preclude defense counsel from commenting in summation on smoking as a cause ofthe plaintiff's injury.[*2]
The court properly declined the plaintiff's request to addthe phrase "in any way" to certain questions on the verdict sheet, where the questions, as setforth, were clear. The trial court also properly declined to include a separate reference to adeparture from accepted practice based solely on the alleged failure of the defendant doctor toprescribe antibiotics, as there was no proof in the record that he should have prescribedantibiotics absent a wound culture (seeSpagnole v Staten Is. Univ. Hosp., 77 AD3d 816 [2010]; Restagno v Horwitz, 46 AD3d533, 534-535 [2007]; Marzuillo v Isom, 277 AD2d 362 [2000]).
Further, the trial court did not err in declining to charge the jury that a deprivation of asubstantial chance for a cure can constitute a substantial factor contributing to a decedent'sinjuries and/or death. "Where there is sufficient evidence to support it, plaintiffs are entitled to ajury instruction that a deprivation of a substantial chance for a cure can constitute a substantialfactor contributing to a decedent's injuries and/or death" (NY PJI 2:150, Comment, XII; seealso Gagliardo v Jamaica Hosp., 288 AD2d 179, 180 [2001]; Cannizzo vWijeyasekaran, 259 AD2d 960 [1999]; Jump v Facelle, 275 AD2d 345, 346 [2000]).Here, however, no rational interpretation of the evidence suggested that the defendant doctor'snegligence deprived the plaintiff of a substantial chance for a cure. Accordingly, the trial courtdid not err in declining to so charge the jury.
Since the plaintiff did not take exception to the trial court's failure to include detailed andseparate interrogatories as to each alleged departure from the standard of care, that issue is notpreserved for appellate review (seeVittorio v U-Haul Co., 77 AD3d 917, 918 [2010]; Laboda v VJV Dev. Corp.,296 AD2d 441 [2002]).
The plaintiff's remaining contentions are without merit. Covello, J.P., Dickerson, Eng andSgroi, JJ., concur.