| Cherisol v Resnik |
| 2011 NY Slip Op 05008 [85 AD3d 705] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Junie Cherisol, Appellant, v Ephraim Resnik,Respondent. |
—[*1] Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP (Mauro Lilling Naparty, LLP,Great Neck, N.Y. [Caryn L. Lilling and Jennifer B. Ettenger] of counsel), forrespondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Rockland County (Garvey, J.), entered June 9, 2010, which,upon a jury verdict, and upon an order of the same court dated July 1, 2010, denying her motionpursuant to CPLR 4404 (a) to set aside the verdict as contrary to the weight of the evidence, for anew trial, and to impose sanctions against defense counsel, is in favor of the defendant andagainst her, in effect, dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff commenced this action to recover damages for medical malpractice against hergynecology oncologist surgeon, the defendant, Ephraim Resnik, alleging, among other things,that Dr. Resnik departed from good and accepted medical practice by severing her ureters duringher laparoscopic hysterectomy surgery. Following a jury verdict in favor of the defendant on theissue of liability, the plaintiff moved, inter alia, to set aside the verdict as contrary to the weightof the evidence, for a new trial, and to impose sanctions on defense counsel for allegedlyimproper remarks. The Supreme Court denied the motion and entered a judgment in favor of thedefendant and against the plaintiff, in effect, dismissing the complaint. We affirm.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jurycould not have reached the verdict on any fair interpretation of the evidence (see Lolik v BigV Supermarkets, 86 NY2d 744, 746 [1995]; Nicastro v Park, 113 AD2d 129,133-134 [1985]). Here, the jury's determination that Dr. Resnik did not depart from good andaccepted medical practice by severing the plaintiff's ureters during her laparoscopic hysterectomywas based upon a fair interpretation of the evidence presented at trial and, thus, should not bedisturbed (see Walter v Matano, 81AD3d 636 [2011]).
The plaintiff's contentions concerning allegedly improper comments made during the [*2]defense summation are without merit. The defense remarks duringsummation either were fair comment on the evidence or permissive rhetorical comment (see Bennett v Wolf, 40 AD3d 274[2007]; Zapata v Dagostino, 265 AD2d 324, 326 [1999]).
The plaintiff's remaining contentions are without merit. Covello, J.P., Chambers, Lott andMiller, JJ., concur.