| Saccone v Gross |
| 2011 NY Slip Op 04444 [84 AD3d 1208] |
| May 24, 2011 |
| Appellate Division, Second Department |
| Rachela Saccone et al., Appellants, v Robert Gross et al.,Defendants, and Kokila B. Shah et al., Respondents. |
—[*1] Jones Hirsch Connors & Bull, P.C., New York, N.Y. (Michael P. Kelly of counsel), forrespondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Queens County (Flug, J.), entered March 12, 2010, which, upona jury verdict, is in favor of the defendants Kokila B. Shah, Kokila B. Shah, M.D., P.C., UshaKrishnamurthy, and Usha Krishnamurthy, M.D., P.C., and against them, dismissing thecomplaint insofar as asserted against those defendants.
Ordered that the judgment is affirmed, with costs.
Contrary to the plaintiff's contention, the facts adduced at trial were insufficient to warrant ajury charge on the doctrine of res ipsa loquitur. The testimony did not give rise to an inference ofnegligence based upon the mere occurrence of the adverse event at issue (see Kambat v St.Francis Hosp., 89 NY2d 489, 494 [1997]; Sangiovanni v Koloski, 31 AD3d 422, 423[2006]; Johnson v Farr, 268 AD2d 560 [2000]; Abbott v New Rochelle Hosp. Med.Ctr., 141 AD2d 589, 590 [1988]). Thus, the Supreme Court properly denied the plaintiff'srequest for a res ipsa loquitur charge.
The plaintiffs' contention that the verdict was contrary to the weight of the evidence also iswithout merit. A jury verdict should not be set aside as contrary to the weight of the evidenceunless the jury could not have reached the verdict on any fair interpretation of the evidence(see Mancusi v Setzen, 73 AD3d 992, 993 [2010]; Nicastro v Park, 113 AD2d129, 134 [1985]). " 'The jury's resolution of conflicting expert testimony is entitled to greatweight, as it is the jury that had the opportunity to observe and hear the experts' " (Mancusi vSetzen, 73 AD3d at 993, quoting Speciale v Achari, 29 AD3d 674, 675 [2006]). "'Where, as here, conflicting expert testimony is presented, the jury is entitled to accept oneexpert's opinion, and reject that of another expert' " (Morales v Interfaith Med. Ctr., 71AD3d 648, 650 [2010], quoting Ross v Mandeville, 45 AD3d 755, 757 [2007]; seeSegal v City of New York, 66 AD3d 865, 867 [2009]). It is within the province of the jury todetermine an expert's credibility (see Monroy v Glavas, 57 AD3d 631, 632 [2008];Cohen v Kasofsky, 55 AD3d 859, 860 [2008]). Thus, since the jury was entitled to acceptthe opinion of the respondents' experts, there is no basis to disturb its determination.[*2]
The plaintiff was properly precluded from offering thePhysicians' Desk Reference into evidence because the proffered evidence constitutedinadmissible hearsay (see Spensieri v Lasky, 94 NY2d 231, 234 [1999]; Hinlicky vDreyfuss, 6 NY3d 636 [2006]; Winant v Carras, 208 AD2d 618, 620 [1994]).Mastro, J.P., Rivera, Austin and Roman, JJ., concur.