| Valenzuela v Wyckoff Hgts. Med. Ctr. |
| 2014 NY Slip Op 02927 [116 AD3d 1037] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Yamilette Genesis Valenzuela, an Infant, by Her Motherand Natural Guardian, Nersy Valenzuela, et al., Respondents, v WyckoffHeights Medical Center et al., Defendants, and Martin Asare Anim, M.D., et al.,Appellants. |
—[*1] Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C.Glasser of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendants MartinAsare Anim and Wyckoff Emergency Medicine Services, P.C., appeal from an order ofthe Supreme Court, Kings County (Steinhardt, J.), dated October 3, 2012, which grantedthe plaintiffs' motion pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of thedefendants and against them on the issue of liability as contrary to the weight of theevidence and for a new trial.
Ordered that the order is reversed, on the facts, with costs, the plaintiffs' motionpursuant to CPLR 4404 (a) is denied, the jury verdict is reinstated, and the matter isremitted to the Supreme Court, Kings County, for the entry of an appropriate judgment.
On January 19, 2004, and on January 23, 2004, when the infant plaintiff wasapproximately five weeks old, she experienced breathing problems and was taken to theemergency room at the defendant Wyckoff Heights Medical Center (hereinafterWHMC). On both occasions, after the infant plaintiff arrived at WHMC, she wasexamined by the defendant Martin Asare Anim, an emergency room physicianboard-certified in general pediatrics, who determined that she was breathing normallyand had normal vital signs. A chest X ray taken on January 19, 2004, was normal, and nochest X ray was ordered on January 23, 2004. The infant plaintiff was discharged on bothoccasions.
On January 25, 2004, the infant plaintiff again experienced difficulty breathing andwas again transported to the emergency room at WHMC. The infant plaintiff latersuffered respiratory failure while in the emergency room, and was transported to thedefendant New York Presbyterian Hospital. An X ray taken at New York PresbyterianHospital later that day revealed certain abnormalities, including swelling of the airways.The infant plaintiff was diagnosed with respiratory syncytial virus.
The plaintiffs commenced this action to recover damages for medical malpracticeagainst, among others, Anim and his professional corporation, Wyckoff EmergencyMedicine Services, P.C. (hereinafter together the Anim defendants), alleging, inter alia,that Anim should have [*2]ordered a chest X ray for theinfant plaintiff on January 23, 2004, and that he should have admitted her to the hospitalon that date. After the parties presented their cases, the jury found in the Animdefendants' favor. The Supreme Court granted the plaintiffs' motion pursuant to CPLR4404 (a) to set aside the jury verdict on the issue of liability as contrary the weight of theevidence and for a new trial. We reverse.
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 Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; DiMarco v Custom C.A.S.,Inc., 106 AD3d 684, 685 [2013]; Nicastro v Park, 113 AD2d 129, 134[1985]). "It is for the jury to make determinations as to the credibility of the witnesses,and great deference in this regard is accorded to the jury, which had the opportunity tosee and hear the witnesses" (Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854,855 [2007]; see Babajanov vYun Sang Ma, 77 AD3d 862 [2010]; Salony v Mastellone, 72 AD3d 1060 [2010]). Here, thedisputed testimony of the parties and their medical experts presented issues of credibilitywhich were for the jury to resolve (see Velonis v Vitale, 57 AD3d 657, 658 [2008]; Murray v Maniatis, 21 AD3d1012, 1013 [2005]; Angrand v Stern, 8 AD3d 218, 219 [2004]; Kaplan vNadler, 289 AD2d 454, 455 [2001]). In particular, the testimony of the Animdefendants' expert board-certified pediatrician provided the jurors with a reasonable basisfor drawing a conclusion contrary to that reached by the plaintiffs' expert regardingwhether Anim departed from good and accepted medical practice by not ordering a chestX ray on January 23, 2004, or by not admitting the infant to the hospital on that date.
Accordingly, the jury verdict was supported by a fair interpretation of the evidenceand should not have been disturbed. Mastro, J.P., Balkin, Sgroi and LaSalle, JJ., concur.