| Knox v Piccorelli |
| 2011 NY Slip Op 03283 [83 AD3d 581] |
| April 26, 2011 |
| Appellate Division, First Department |
| Antoine L. Knox, as Administrator of the Estate of Marie White,Deceased, Appellant, v George O. Piccorelli, M.D., Defendant, and John R. Zambito,M.D., et al., Respondents. |
—[*1] Mauro Lilling Naparty LLP, Great Neck (Jennifer B. Ettenger of counsel), for John R.Zambito, M.D., respondent. Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. BarnabasHospital, respondent.
Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 4,2010, after a jury trial in an action alleging medical malpractice, dismissing the complaint,unanimously affirmed, without costs.
Plaintiff failed to preserve his claim that the verdict was inconsistent (see Arrieta v Shams Waterproofing,Inc., 76 AD3d 495, 496 [2010];see Lowenstein v Normandy Group, LLC, 51 AD3d 517, 518 [2008]). The fact thatplaintiff argued that the verdict was against the weight of the evidence is of no moment, becausehe may not avoid the consequence of his failure to preserve his inconsistency argument byattempting to characterize it as an argument addressed to the weight of the evidence (see Sims v Comprehensive CommunityDev. Corp., 40 AD3d 256, 258 [2007]).
Were we to review the contention that the verdict was inconsistent as a result of the juryfinding defendants departed from good and accepted medical practice without a finding ofproximate cause as to the decedent's alleged injuries, we would find that the verdict was neitherinconsistent nor against the weight of the evidence (see generally Cohen v HallmarkCards, 45 NY2d 493, 499 [1978]). There exists no basis to disturb the jury's credibilitydeterminations (see e.g. Bykowsky vEskenazi, 72 AD3d 590 [2010], lv denied 16 NY3d 701 [2011]).Concur—Mazzarelli, J.P., Renwick, DeGrasse, Freedman and Richter JJ.