| Hatzis v Buchbinder |
| 2013 NY Slip Op 08597 [112 AD3d 890] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Adrianna Hatzis, Individually and as Executor of PeterHatzis, Deceased, Appellant, v Mitchell I. Buchbinder et al.,Respondents. |
—[*1] Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, andMelissa M. Murphy of counsel), for respondents Mitchell I. Buchbinder and Mitchell I.Buchbinder, M.D., P.C. Hirsch, Britt & Mose, Garden City, N.Y. (Fredrick Mose and Victoria A. Carr ofcounsel), for respondents David Katz and Katz, Pugach & Needleman, doing business asNext Generation Radiology.
In an action to recover damages for negligence and medical malpractice, etc., theplaintiff appeals from a judgment of the Supreme Court, Queens County (Weiss, J.),dated December 1, 2011, which, upon a jury verdict, and upon the denial her motionpursuant to CPLR 4404 (a) to set aside the verdict as contrary to the weight of theevidence and for a new trial, is in favor of the defendants and against her dismissing thecomplaint.
Ordered that the judgment is affirmed, with one bill of costs.
There is no merit to the plaintiff's contention that the Supreme Court committedreversible error when, in response to the jury's request to reiterate thepreponderance-of-the-evidence standard, it issued a truncated version of the pattern juryinstruction. The record reflects that the court's charge, as a whole, adequately conveyedthe proper legal principles to the jury (see Vaccarino v Mad Den, Inc., 100 AD3d 867 [2012]; Winderman v Brooklyn/McDonaldAve. Shoprite Assoc., Inc., 85 AD3d 1018 [2011]).
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Grassi v Ulrich, 87 NY2d 954, 956 [1996]; Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Jean-Louis v City of New York, 86 AD3d 628, 628[2011]). The jury's assessment of credibility of experts who provided conflictingtestimony at trial "is entitled to great weight, as it is the jury that had the opportunity toobserve and hear the experts" (Saccone v Gross, 84 AD3d 1208, 1208-1209 [2011][internal quotation marks omitted]). "Where, as here, conflicting expert testimony ispresented, the jury is entitled to accept one expert's opinion and reject that of anotherexpert" (Ferreira v WyckoffHgts. Med. Ctr., 81 AD3d 587, 588 [2011]; see Bailey v Brookdale Univ. Hosp. & Med. Ctr., 98 AD3d545 [2012]; Lolly vBrookdale Univ. Hosp. & Med. Ctr., 90 AD3d 862 [2011]). Here, the jury wasfree to credit the testimony [*2]of the defendants' expertwitnesses over that of the plaintiff's experts. Upon the exercise of our factual reviewpower, we conclude that, contrary to the plaintiff's contention, there is no basis to disturbthe jury's determination with respect to the defendant David Katz.
The plaintiff's remaining contentions are without merit. Mastro, J.P., Rivera,Leventhal and Chambers, JJ., concur.