| Polka v Mount St. Mary's Hosp. of Niagara Falls |
| 2020 NY Slip Op 05345 [187 AD3d 1538] |
| October 2, 2020 |
| Appellate Division, Fourth Department |
[*1]
| Thomas Polka, Appellant, v Mount St. Mary's Hospitalof Niagara Falls et al., Respondents. |
Dempsey & Dempsey, Buffalo (Catherine B. Dempsey of counsel), forplaintiff-appellant.
Stillwell Midgley, Buffalo (John M. Visco of counsel), for defendant-respondent Mount St.Mary's Hospital of Niagara Falls.
Roach, Brown, McCarthy & Gruber, P.C., Buffalo (J. Mark Gruber of counsel), fordefendant-respondent Marc Klementowski, M.D.
The Tarantino Law Firm, LLP, Buffalo (Ann M. Campbell of counsel), fordefendant-respondent Kyle R. Andrews, as Administrator of the Estate of Renee Buckley-Bleiler,P.A., Deceased.
Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County(Daniel Furlong, J.), entered February 6, 2019. The order and judgment granted the motions ofdefendants for a directed verdict and dismissed the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously reversed onthe law without costs, defendants' motions for a directed verdict are denied, the complaint isreinstated and a new trial is granted in accordance with the following memorandum: Plaintiffcommenced this medical malpractice action against defendants, Mount St. Mary's Hospital ofNiagara Falls (hospital), Marc Klementowski, M.D., and Kyle R. Andrews, as administrator ofthe estate of Renee Buckley-Bleiler, P.A., deceased, seeking damages for alleged negligence inthe treatment of plaintiff's right ear. We agree with plaintiff that Supreme Court erred in grantingdefendants' motions for a directed verdict. Plaintiff presented expert testimony establishing thatBuckley-Bleiler, who examined plaintiff in the hospital's emergency room on the night inquestion, should have recognized and diagnosed plaintiff with a middle ear infection based upon,inter alia, plaintiff's complaints at that time. Also according to plaintiff's experts,Buckley-Bleiler's negligence caused or contributed to plaintiff's profound hearing loss.Furthermore, plaintiff established through the testimony of one expert that Klementowski, thesupervising physician in the emergency room at the time, should have realized upon reviewingplaintiff's chart that plaintiff had a serious infection. Based on the expert testimony presented byplaintiff, it cannot be said that "it would . . . be utterly irrational for a jury to reach[a verdict in favor of plaintiff]" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).We therefore reverse the order and judgment, deny defendants' motions for a directed verdict andgrant a new trial before a different justice. Present—Centra, J.P., NeMoyer, Troutman,Winslow and Bannister, JJ.