| Nelson v Schwartz |
| 2011 NY Slip Op 08917 [90 AD3d 626] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Valerie Nelson, Appellant, v Benjamin M. Schwartz, M.D.,et al., Respondents, et al., Defendant. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Stewart G. Milch and John L.A. Lyddaneof counsel), for respondents Benjamin M. Schwartz and Schwartz Gynecologic Oncology, PLLC. Kopff, Nardelli & Dopf LLP, New York, N.Y. (Martin B. Adams and Peter C. Kopff ofcounsel), for respondents Sudha Kuncham and Wantagh OB/GYN, P.C.
In an action to recover damages for medical malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Nassau County (McCarty III, J.), entered June 4, 2010, which,upon a jury verdict on the issue of liability and upon the denial of her motion pursuant to CPLR4404 (a) to set aside the verdict as contrary to the weight of the evidence and for a new trial, is infavor of the defendants Benjamin M. Schwartz, Schwartz Gynecologic Oncology, PLLC, SudhaKuncham, and Wantagh OB/GYN, P.C., and against her dismissing the complaint insofar asasserted against those defendants.
Ordered that the judgment is affirmed, with one bill of costs.
"A jury verdict in favor of a defendant may not be set aside as being against the weight of theevidence unless the jury could not have reached the verdict on any fair interpretation of theevidence" (Landau v Rappaport, 306 AD2d 446, 446-447 [2003]; see Nicastro vPark, 113 AD2d 129, 134 [1985]). This standard "was intended to accentuate the principlethat when a jury, upon being presented with sharply conflicting evidence creating a factualdispute, resolved the controversy in favor of the defendant upon a fair interpretation of theevidence, that finding should be sustained" (Nicastro v Park, 113 AD2d at 134). "A juryis not required to accept an expert's opinion to the exclusion of the facts and circumstancesdisclosed by other testimony and/or the facts disclosed on cross-examination" (Zapata vDagostino, 265 AD2d 324, 325 [1999]). "Indeed, a jury is at liberty to reject an expert'sopinion if it finds the facts to be different from those which formed the basis for the opinion or if,after careful consideration of all the evidence in the case, it disagrees with the opinion"(id.).
Here, the plaintiff and the defendants Benjamin M. Schwartz, Schwartz GynecologicOncology, PLLC, Sudha Kuncham, and Wantagh OB/GYN, P.C. (hereinafter collectively thedefendants), presented expert testimony in support of their respective positions, and the jury was[*2]entitled to accept one expert's opinion and reject that ofanother expert (see Ferreira v WyckoffHgts. Med. Ctr., 81 AD3d 587, 588 [2011]). This determination and the jury's ultimatedetermination that the defendants did not depart from good and accepted medical practice werebased upon a fair interpretation of the evidence presented at trial, and, therefore, will not bedisturbed (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Manuka v Crenshaw, 43 AD3d886, 887 [2007]; Nicastro v Park, 113 AD2d at 135).
While the trial court erred in giving an "error in judgment" charge to the jury (PJI 2:150),under the facts of this case, the error was harmless (see Nestorowich v Ricotta, 97 NY2d393 [2002]). Mastro, A.P.J., Chambers, Austin and Miller, JJ., concur.