| Taylor v Haque |
| 2012 NY Slip Op 02863 [94 AD3d 978] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Jennifer Taylor et al., Appellant, v Fakhrun Nessa Haque,Respondent. |
—[*1] Geisler & Gabriele, LLP (Mauro Lilling Naparty LLP, Great Neck, N.Y. [Caryn L. Lillingand Katherine Herr Solomon], of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, theplaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), datedSeptember 21, 2010, which denied her motion pursuant to CPLR 4404 (a) to set aside a juryverdict in favor of the defendant as contrary to the weight of the evidence or in the interest ofjustice and for a new trial.
Ordered that the order is affirmed, with costs.
A jury verdict should not be set aside as contrary to the weight of the evidence unless the jurycould not have reached the verdict by any fair interpretation of the evidence (see Grassi vUlrich, 87 NY2d 954, 956 [1996]; Lolik v Big V Supermarkets, 86 NY2d 744, 746[1995]; Jean-Louis v City of NewYork, 86 AD3d 628, 628 [2011]). The jury's resolution of conflicting expert testimony isentitled to great weight, as it is the jury that had the opportunity to observe and hear the experts(see Saccone v Gross, 84 AD3d1208, 1208-1209 [2011]; Ferreira vWyckoff Hgts. Med. Ctr., 81 AD3d 587, 588 [2011]). Where, as here, conflicting experttestimony is presented, the jury is entitled to accept one expert's opinion and reject that of anotherexpert (see Lolly v Brookdale Univ.Hosp. & Med. Ctr., 90 AD3d 862 [2011]; Ferreira v Wyckoff Hgts. Med. Ctr.,81 AD3d at 588).
Here, the jury was entitled to accept the opinion of the defendant's medical expert that thedefendant did not depart from good and accepted medical practice in not referring the plaintiff'sdecedent to a cardiologist for a stress test prior to elective knee surgery, and there is no basis todisturb its determination. Accordingly, the Supreme Court did not err in denying that branch ofthe plaintiff's motion which was pursuant to CPLR 4404 (a) to set aside the jury verdict in favorof the defendant as contrary to the weight of the evidence.
The plaintiff's remaining contentions are unpreserved for appellate review, are without merit,or do not warrant reversal. Rivera, J.P., Chambers, Roman and Sgroi, JJ., concur.