| Meneses v Riggs |
| 2016 NY Slip Op 02624 [138 AD3d 700] |
| April 6, 2016 |
| Appellate Division, Second Department |
[*1]
| Mireya Meneses et al., Appellants, v JohnRiggs, M.D., Respondent. |
The Fitzgerald Law Firm, P.C. (Landers & Cernigliaro, P.C., Carle Place, N.Y.[Stanley A. Landers], of counsel), for appellants.
Marulli, Lindenbaum, Edelman & Tomaszewski, LLP, New York, NY (JohnTomaszewski of counsel), for respondent.
In an action to recover damages for medical malpractice, etc., the plaintiffs appealfrom a judgment of the Supreme Court, Kings County (Baily-Schiffman, J.), enteredAugust 15, 2014, which, upon the granting of the defendant's motion pursuant to CPLR4401 for judgment as a matter of law, made at the close of the plaintiffs' case, is in favorof the defendant and against them, dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the motion is denied,the complaint is reinstated, and the matter is remitted to the Supreme Court, KingsCounty, for a new trial.
To succeed on a motion for judgment as a matter of law pursuant to CPLR 4401, adefendant has the burden of showing that there was no rational process by which the jurycould have found in favor of the plaintiff and against the moving defendant (seeSzczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Porcelli v Northern Westchester Hosp. Ctr., 110 AD3d 703,705 [2013]). To establish a prima facie case of liability in a medical malpractice action, aplaintiff is required to prove that the defendant departed from good and acceptedstandards of medical practice, and that the departure was a proximate cause of the injury(see Goldberg v Horowitz,73 AD3d 691, 693 [2010]; Hanley v St. Charles Hosp. & RehabilitationCtr., 307 AD2d 274, 277 [2003]).
Here, affording the plaintiffs the benefit of every reasonable inference which can bedrawn from the facts presented at trial, and considering such facts in a light mostfavorable to them (see Szczerbiak v Pilat, 90 NY2d at 556), the plaintiffsestablished their prima facie case of liability against the defendant. Accordingly, theSupreme Court erred in granting the defendant's motion pursuant to CPLR 4401 forjudgment as a matter of law, and a new trial is warranted (see Ping Ji v Malik, 68 AD3d835 [2009]; Velonis vVitale, 57 AD3d 657, 658 [2008]).
Moreover, we note, as relevant to the retrial, that the Supreme Court did not err inprecluding the admission into evidence of certain written reports prepared bynontestifying doctors [*2]and interpreting the results ofmedical tests (see D'Andraia vPesce, 103 AD3d 770, 771 [2013]; Wagman v Bradshaw, 292 AD2d 84[2002]). When the plaintiffs later decided to call as a witness the author of one suchreport, Dr. Roberto Granato, the court correctly allowed the plaintiffs' counsel, uponlaying a proper foundation, to introduce the report into evidence (see Wagman vBradshaw, 292 AD2d 84 [2002]).
However, the Supreme Court improvidently exercised its discretion in limiting thescope of the plaintiffs' questioning of Dr. Granato after the defendant's counsel hadelicited from the witness, over the plaintiffs' objection, certain expert testimony on amaterial and relevant subject that went beyond the scope of the plaintiffs' directexamination (see Canonico vBeechmont Bus Serv., Inc., 15 AD3d 327 [2005]; Selly v Port of N.Y.Auth., 36 AD2d 861 [1971]).
The plaintiffs' remaining contentions either are without merit or need not be reachedin light of our determination. Dillon, J.P., Chambers, Dickerson and Barros, JJ.,concur.