| Mazella v Beals |
| 2015 NY Slip Op 00074 [124 AD3d 1328] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Janice Mazella, as Administratrix of the Estate ofJoseph Mazella, Deceased, Appellant, v William Beals, M.D., Defendant, andElisabeth Mashinic, M.D., Respondent. (Appeal No. 2.) |
Delduchetto & Potter, Syracuse (Ernest A. Delduchetto of counsel), AlessandraDeblasio, New York City, for plaintiff-appellant.
Smith, Sovik, Kendrick Sugnet, P.C., Syracuse (Anthony R. Brighton of counsel),for defendant-respondent.
Appeal from an amended judgment of the Supreme Court, Onondaga County (JohnC. Cherundolo, A.J.), entered May 21, 2013. The amended judgment, insofar as appealedfrom, dismissed the complaint against defendant Elisabeth Mashinic, M.D., upon a juryverdict.
It is hereby ordered that the amended judgment so appealed from is unanimouslyaffirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice and wrongful deathaction alleging that Elisabeth Mashinic, M.D. (defendant) was negligent in her treatmentof plaintiff's decedent and that her negligence was a substantial factor contributing to thedeath of plaintiff's decedent by suicide. Plaintiff appeals from an amended judgmententered upon a jury verdict determining that, although defendant was negligent, hernegligence was not a proximate cause of the death of plaintiff's decedent. Plaintiff failedto preserve for our review her contention that the verdict with respect to defendant wasinconsistent with the verdict finding the codefendant liable, inasmuch as she failed toraise that contention before the jury was discharged (see Barry v Manglass, 55NY2d 803, 806 [1981], rearg denied 55 NY2d 1039 [1982]; Schley v Steffans, 79 AD3d1753, 1753 [2010]). In any event, that contention is without merit. The claims ofnegligence with respect to the respective defendants were distinct and the treatment ofplaintiff's decedent by the respective defendants was not dependent upon the actions ofthe other (cf. Midler vCrane, 14 NY3d 877, 879 [2010], rearg denied 15 NY3d 821 [2010];see generally Ledogar v Giordano, 122 AD2d 834, 836-837 [1986]).
Plaintiff also failed to preserve for our review her contention that the verdict isagainst the weight of the evidence by filing a motion pursuant to CPLR 4404 (a) to setaside the verdict on that ground. In any event, that contention also is without merit. "Ajury verdict will be set aside as against the weight of the evidence only when theevidence at trial 'so preponderated in favor of the [losing party] that the verdict could nothave been reached on any fair interpretation of the evidence' . . . 'A verdictfinding that a defendant was negligent but that such negligence was not a proximatecause of [decedent's death] is against the weight of the evidence only when [those] issuesare so inextricably interwoven as to make it logically impossible to find negligencewithout also finding proximate cause' " (Schreiber v University of Rochester Med. Ctr., 88 AD3d1262, 1263 [2011]; seeLesio v Attardi, 121 AD3d 1527, 1529 [2014]). That is not the case here.Plaintiff's decedent died 16 days after his discharge from inpatient care, where he wastreated by defendant. The parties each presented expert testimony with respect to whetherdefendant's treatment of plaintiff's decedent and her follow-up plan for his care met thestandard of care and whether any [*2]of the allegedclaims of negligence was a substantial factor in decedent's death. "Where, as here,conflicting expert testimony is presented, the jury is entitled to accept one expert'sopinion and reject that of another expert" (Taylor v Haque, 94 AD3d 978, 979 [2012]; see Sisson v Alexander, 57AD3d 1483, 1483-1484 [2008], lv denied 12 NY3d 709 [2009]). As wenoted in the appeal of the codefendant, this "trial was a prototypical battle of the experts"(Mazella v Beals [appeal No. 3], 122 AD3d 1358, 1359 [2014] [internalquotation marks omitted]), and we conclude that the jury's finding that decedent's deathwas not caused by defendant's negligence "was a rational and fair interpretation of theevidence" (id. [internal quotation marks omitted]). Present—Scudder, P.J.,Centra, Fahey and Lindley, JJ.