Lolly v Brookdale Univ. Hosp. & Med. Ctr.

Lolly v Brookdale Univ. Hosp. & Med. Ctr. 2011 NY Slip Op 09283 Decided on December 20, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
ARIEL E. BELEN
SHERI S. ROMAN, JJ.
2009-10530
(Index No. 5241/04)

[*1]Theresa Lolly, appellant,

v

Brookdale University Hospital and Medical Center, et al., respondents, et al., defendants. Victor M. Serby, Woodmere, N.Y., for appellant.




Bower, Monte & Greene, P.C. (Mauro Lilling Naparty LLP, Great
Neck, N.Y. [Caryn L. Lilling and Katherine Herr Solomon], of
counsel), for respondents.


DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Martin, J.), entered October 2, 2009, which, upon a jury verdict on the issue of liability, and upon an order of the same court dated August 4, 2009, denying her motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability as contrary to the weight of the evidence and for a new trial, is in favor of the defendants Brookdale University Hospital and Medical Center, Saulis Maius Banionis, and Syed Ahmed and against her dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed, with costs.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence (see Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d 587, 588; see generally Lolik v Big V Supermarkets, 86 NY2d 744; Nicastro v Park, 113 AD2d 129). "Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert" (Ferreira v Wyckoff Hgts. Med. Ctr., 81 AD3d at 588; see Frenchman v Westchester Med. Ctr., 77 AD3d 618, 619; Morales v Interfaith Med. Ctr., 71 AD3d 648, 650; Segal v City of New York, 66 AD3d 865, 867; Ross v Mandeville, 45 AD3d 755, 757). Contrary to the plaintiff's contention, the jury's findings in this case were based on a fair interpretation of the evidence and, thus, were not contrary to the weight of the evidence (see Frenchman v Westchester Med. Ctr., 77 AD3d 618; Lovett v Interfaith Med. Ctr., 52 AD3d 578; Manuka v Crenshaw, 43 AD3d 886).

The facts adduced at trial were insufficient to warrant a jury charge on the doctrine of res ipsa loquitur. The nature of the testimony did not give rise to an inference of negligence based upon the mere occurrence of the adverse event at issue (see Kambat v St. Francis Hosp., 89 NY2d 489; Saccone v Gross, 84 AD3d 1208; Sangiovanni v Koloski, 31 AD3d 422; Johnson v Farr, 268 AD2d 560; Abbott v New Rochelle Hosp. Med. Ctr., 141 AD2d 589).

The plaintiff's remaining contentions are without merit.
SKELOS, J.P., LEVENTHAL, BELEN and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court