| Alger v University of Rochester Med. Ctr. |
| 2014 NY Slip Op 00837 [114 AD3d 1209] |
| February 7, 2014 |
| Appellate Division, Fourth Department |
| Collette Alger et al., Appellants, v Strong MemorialHospital et al., Respondents, et al., Defendants. |
—[*1] Martin Clearwater & Bell LLP, New York City (Stewart G. Milch of counsel), fordefendants-respondents.
Appeal from a judgment of the Supreme Court, Monroe County (Evelyn Frazee, J.),entered January 29, 2013. The judgment awarded costs and disbursements to defendantsUniversity of Rochester Medical Center, Strong Memorial Hospital, Nancy Wang, Ph.D.,and Stephanie Laniewski, C.G.C.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiffs commenced this action seeking damages for physical andemotional injuries allegedly sustained as a result of the decision of Collette Alger(plaintiff) to terminate her pregnancy. Plaintiffs alleged that such decision was the resultof defendants' negligence in performing prenatal diagnostic tests and advising themregarding the results of such tests. After a trial, the jury rendered a verdict in favor ofdefendants, finding that Stephanie Laniewski, C.G.C. was not negligent and thatUniversity of Rochester Medical Center, Strong Memorial Hospital (Hospital) and NancyWang, Ph.D. were negligent but that their negligence was not a proximate cause ofplaintiffs' injuries. Supreme Court denied plaintiffs' posttrial motion seeking, inter alia, toset aside the verdict as against the weight of the evidence. We affirm.
"A verdict rendered in favor of a defendant may be successfully challenged asagainst the weight of the evidence only when the evidence so preponderated in favor ofthe plaintiff[s] that it could not have been reached on any fair interpretation of theevidence" (Krieger vMcDonald's Rest. of N.Y., Inc., 79 AD3d 1827, 1828 [2010], lvdismissed 17 NY3d 734 [2011] [internal quotation marks omitted]; see Lolik vBig V Supermarkets, 86 NY2d 744, 746 [1995]). Further, "[w]here a verdict can bereconciled with a reasonable view of the evidence, the successful party is entitled to the[*2]presumption that the jury adopted that view" (Schreiber v University ofRochester Med. Ctr., 88 AD3d 1262, 1263 [2011] [internal quotation marksomitted]). We conclude that a reasonable view of the evidence supports the jury's verdictthat Laniewski, a certified genetic counselor, was not negligent. There was conflictingtestimony concerning the communications between Laniewski and plaintiffs, and " 'greatdeference is accorded to the jury given its opportunity to see and hear the witnesses' " (Seong Yim Kim v New York CityTr. Auth., 87 AD3d 531, 532 [2011]).
With respect to the other defendants, we conclude that the verdict finding that theywere negligent but that their negligence was not a proximate cause of plaintiffs' injuriesis not inherently inconsistent (see Finnegan v Peter, Sr. & Mary L. Liberatore Family Ltd.Partnership, 90 AD3d 1676, 1677 [2011]). Nor is that verdict against the weightof the evidence unless the issues are so inextricably interwoven that it would be logicallyimpossible to find negligence without also finding proximate cause (seeSchreiber, 88 AD3d at 1263). We conclude that there is a fair interpretation of theevidence pursuant to which the jury could have found that defendants Hospital andWang were negligent in reporting erroneous test results to plaintiffs, but that theirnegligence did not proximately cause plaintiffs' injuries. The evidence presented "factualquestion[s] . . . whether, under the circumstances, it could reasonably beexpected that plaintiff . . . would elect to undergo an abortion" (Lynch vBay Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636 [1988]), andwhether that decision was sufficiently independent of defendants' conduct to constitutean intervening cause. Those questions presented issues for the jury to resolve (seeid.) and we decline to disturb its resolution of those issues in defendants' favor(see Wilson v Mary Imogene Bassett Hosp., 307 AD2d 748, 748-749 [2003]).We reject plaintiffs' contention that the court abused its discretion in permitting severalwitnesses to provide expert testimony on the issue of proximate cause (see Kettles v City ofRochester, 21 AD3d 1424, 1426 [2005]). Finally, plaintiffs' further contentionthat the structure of the verdict sheet caused the jury to confuse proximate cause andcomparative fault is unpreserved for our review and in any event is lacking in merit (see McFadden v Oneida, Ltd.,93 AD3d 1309, 1310-1311 [2012]). Present—Smith, J.P., Fahey, Lindley,Sconiers and Whalen, JJ.