Ackerman v Wales

[*1] Ackerman v Wales 2009 NY Slip Op 50618(U) [23 Misc 3d 128(A)] Decided on April 9, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 9, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, and Heitler, JJ
570421/06.

Albert Ackerman, M.D., and Harvey W. Topilow, M.D., Plaintiffs-Respondents,

against

Elliot Wales, Defendant-Appellant.

Defendant appeals from (1) a judgment of the Civil Court of the City of New York, New York County (Geoffrey D. Wright, J.), entered May 18, 2006, awarding plaintiffs damages in the sum of $25,092.57, and bringing up for review an order (same court and Judge), dated April 26, 2006, which dismissed defendant's counterclaim for medical malpractice, and (2) an order (same court and Judge) entered August 3, 2006, which denied his CPLR 4404 motion to set aside the judgment.

Per Curiam.

Judgment (Geoffrey D. Wright, J.), entered May 18, 2006 and order (Geoffrey D. Wright, J.), dated August 3, 2006, affirmed, with one bill of $25 costs. Giving "every favorable inference which could reasonably be drawn" to the evidence adduced by defendant on his medical malpractice counterclaim (see Rhabb v New York City Hous. Auth., 41 NY2d 200 [1976]), there was no rational basis upon which a fact-finder could have found that plaintiffs deviated from accepted medical practice (see Johnson v St. Barnabus Hospital, 52 AD3d 286 [2008], lv denied 11 NY3d 705 [2008]). Where, as here, the alleged act of malpractice is not within the ordinary experience and knowledge of a layperson, it was incumbent upon defendant to present expert medical testimony to establish a prima facie case (see Rodriguez v Saal, 43 AD3d 272 [2007]). While defendant could satisfy that requirement by using plaintiff-doctors as his experts (see McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20 [1964]), the deposition and trial testimony of plaintiff Topilow, relied upon by defendant, did not establish that plaintiffs deviated from good and accepted medical practice.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
Decision Date: April 09, 2009