| Yanyak v Rosenman |
| 2015 NY Slip Op 09098 [134 AD3d 817] |
| December 9, 2015 |
| Appellate Division, Second Department |
[*1]
| Olha Yanyak et al., Respondents, v Arthur J.Rosenman, M.D., et al., Appellants. |
Garson & Jakub LLP, New York, N.Y. (Susan M. McNamara of counsel), forappellants.
Pegalis & Erickson, LLC, Lake Success, N.Y. (Robert V. Fallarino andGerhardt M. Nielsen of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom (1) an order of the Supreme Court, Suffolk County (Garguilo, J.), dated January 14,2014, which granted that branch of the plaintiffs' motion which was pursuant to CPLR4404 (a) to set aside a jury verdict in favor of the defendants and for judgment as amatter of law on the issue of liability, and (2) a judgment of the same court, dated April21, 2014, which, upon the order, is in favor of the plaintiffs and against them on the issueof liability.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, that branch of the plaintiffs'motion which was pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of thedefendants and for judgment as a matter of law on the issue of liability is denied, the juryverdict is reinstated, the order is modified accordingly, and the matter is remitted to theSupreme Court, Suffolk County, for the entry of an appropriate judgment in favor of thedefendants; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
Pursuant to CPLR 4404 (a), a court may, inter alia, set aside a verdict or anyjudgment entered thereon and direct that judgment be entered in favor of a party entitledto judgment as a matter of law. In order for a court to do so, there must be no valid lineof reasoning and permissible inferences which could possibly lead rational people to theconclusion reached by the jury on the basis of the evidence presented at trial (seeCohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; LePatner v VJM HomeRenovations, 295 AD2d 322, 323 [2002]). In the instant case, the Supreme Courtshould have denied that branch of the plaintiffs' motion which was to set aside the juryverdict in favor of the defendants and for judgment as a matter of law in their favor onthe issue of liability, as there existed a valid line of reasoning and permissible inferencesfrom which the jury could rationally conclude that the defendants did not depart fromgood and accepted medical practice by not performing a loop [*2]electrosurgical excision procedure (hereinafter LEEPprocedure) or a cone biopsy (see Cohen v Hallmark Cards, 45 NY2d at 499;Schwartz v Minkoff, 308 AD2d 484, 485-486 [2003]).
After determining that the plaintiffs were entitled to judgment as a matter of law, theSupreme Court did not decide that branch of the plaintiffs' motion which was for a newtrial, made on the ground that the jury verdict in favor of the defendants on the issue ofliability was contrary to the weight of the evidence. Under the circumstances and in theinterest of judicial economy, we address that branch of the plaintiffs' motion in the firstinstance (see Lariviere v NewYork City Tr. Auth., 131 AD3d 1130 [2015]; Telsaint v City of New York,120 AD3d 794, 796 [2014]).
Upon our review of the record, we conclude that the jury verdict was not contrary tothe weight of the evidence. A jury verdict should not be set aside as contrary to theweight of the evidence unless the jury could not have reached the verdict by any fairinterpretation of the evidence (see Lolik v Big v Supermarkets, 86 NY2d 744,746 [1995]; Semo vMcMahon, 128 AD3d 1048 [2015]; Valenzuela v Wyckoff Hgts. Med. Ctr., 116 AD3d 1037[2014]; DiMarco v CustomC.A.S., Inc., 106 AD3d 684, 685 [2013]; Nicastro v Park, 113 AD2d129, 134 [1985]). It is for the jury to make determinations as to the credibility of thewitnesses, and great deference in this regard is accorded to the jury, which had theopportunity to see and hear the witnesses (see Semo v McMahon, 128 AD3d at1049; Valenzuela v Wyckoff Hgts. Med. Ctr., 116 AD3d at 1038; Babajanov v Yun Sang Ma, 77AD3d 862 [2010]; Salony vMastellone, 72 AD3d 1060 [2010]; Exarhouleas v Green 317 Madison, LLC, 46 AD3d 854,855 [2007]). Here, the disputed testimony of the parties and their medical expertspresented issues of credibility which were for the jury to resolve (see Semo vMcMahon, 128 AD3d at 1049; Valenzuela v Wyckoff Hgts. Med. Ctr., 116AD3d at 1039; Velonis vVitale, 57 AD3d 657, 658 [2008]; Murray v Maniatis, 21 AD3d 1012, 1013 [2005]; Angrand v Stern, 8 AD3d218, 219 [2004]). In particular, the testimony of the defendants' expert provided thejurors with a reasonable basis for drawing a conclusion contrary to that reached by theplaintiffs' expert regarding whether the defendants departed from good and acceptedmedical practice by not performing a LEEP procedure or a cone biopsy. Accordingly, thejury verdict was supported by a fair interpretation of the evidence and must be reinstated.Rivera, J.P., Dickerson, Miller and Maltese, JJ., concur. [Prior Case History: 2014NY Slip Op 30216(U).]