| Burnett v Jeffers |
| 2011 NY Slip Op 09255 [90 AD3d 799] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Lennard Burnett and Another, Infants, by Their Mother and NaturalGuardian, Jasmine Burnett, et al., Respondents, v Oswald Jeffers, Defendant, andInterfaith Medical Center, Appellant. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R. Pagano, and Margaret Johnson-Pertet of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the defendant InterfaithMedical Center appeals from a judgment of the Supreme Court, Kings County (Weston, J.),dated December 23, 2009, which, upon a jury verdict on the issue of liability finding it 60% atfault for the plaintiff Lennard Burnett's injuries, and 40% at fault for the plaintiff Tia Burnett'sinjuries, upon a jury verdict on the issue of damages awarding the plaintiff Lennard Burnett theprincipal sums of $270,000 for past pain and suffering, $1,600,000 for future pain and suffering,and $700,000 for future medical expenses, and awarding the plaintiff Tia Burnett the principalsums of $270,000 for past pain and suffering, $1,500,000 for future pain and suffering, and$700,000 for future medical expenses, upon an order of the same court dated November 12,2008, denying that branch of its motion pursuant to CPLR 4404 (a) which was to set aside thejury verdict on the issue of liability and for judgment as a matter of law or, in the alternative, toset aside the jury verdict on the issue of liability as contrary to the weight of the evidence and fora new trial, and granting that branch of its motion pursuant to CPLR 4404 (a) which was to setaside as excessive the damages awards only to the extent of granting a new trial on the issue ofdamages unless the plaintiffs stipulated to reduce the damages awards to the plaintiff LennardBurnett for past pain and suffering from the sum of $270,000 to the sum of $100,000, and forfuture pain and suffering from the sum of $1,600,000 to the sum of $500,000, and to the plaintiffTia Burnett for past pain and suffering from the sum of $270,000 to the sum of $100,000, and forfuture pain and suffering from the sum of $1,500,000 to the sum of $450,000, and upon theplaintiffs' stipulation to reduce the verdict on the issue of damages, is in favor of the plaintiffLennard Burnett and against it in the principal sum of $780,000, and in favor of the plaintiff TiaBurnett and against it in the principal sum of $500,000.
Ordered that the judgment is affirmed, with costs.
Accepting the plaintiffs' evidence as true, and according the plaintiffs the benefit of everyreasonable inference which can reasonably be drawn therefrom (see CPLR 4404 [a];Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Christ v Law Offs. of William F. Levine & Michael B. Grossman, 72AD3d 721, 723 [2010]; Broadie vSt. Francis Hosp., 25 AD3d 745, 746 [2006]), there was a rational process by [*2]which the jury could find that the defendant Interfaith MedicalCenter (hereinafter IMC) departed from accepted medical practice by failing to perform leadpoisoning risk assessments and provide lead poisoning anticipatory guidance during the infantplaintiffs' pediatric visits, and that such departures were a proximate cause of the infant plaintiffs'injuries (see Christ v Law Offs. of William F. Levine & Michael B. Grossman, 72 AD3dat 723; Shallash v New Is. Hosp., 66AD3d 988, 991-992 [2009]; Broadie v St. Francis Hosp., 25 AD3d at 746).Moreover, we are satisfied that the verdict, including the apportionment of liability, was notcontrary to the weight of the evidence (see McAleer v Geraghty, 80 AD3d 673, 674 [2011]; Ford v Southside Hosp., 12 AD3d561, 562 [2004]).
The Supreme Court did not improvidently exercise its discretion in striking the testimony ofone of IMC's expert witnesses, since IMC failed to reasonably comply with the expert witnessdisclosure requirements of CPLR 3101 (d) (see Lucian v Schwartz, 55 AD3d 687, 688 [2008]).
The damages awards for past and future pain and suffering, as stipulated to by the plaintiffs,did not deviate materially from what is reasonable compensation (see CPLR 5501 [c]; Solis-Vicuna v Notias, 71 AD3d868, 870-871 [2010]; Alvarado vCulotta, 65 AD3d 504 [2009]; Guerrero v Djuko Realty, 300 AD2d 542 [2002];Jackson v Chetram, 300 AD2d 446 [2002]; Padilla v Jols Realty Corp., 284AD2d 512 [2001]; Hiraldo v Khan, 267 AD2d 205 [1999]). Moreover, the jury's awardfor future medical expenses was supported by the evidence.
IMC's remaining contentions are without merit. Angiolillo, J.P., Hall, Austin and Miller, JJ.,concur.