Solomon v Center for Specialized Veterinary Care

[*1] Solomon v Center for Specialized Veterinary Care 2015 NY Slip Op 50423(U) Decided on March 17, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2013-1834 N C

Andrea Marie Solomon and EDMOND THOMAS ANDRESKI, Appellants, The

against

Center for Specialized Veterinary Care Also Known as BRIGHTHEART VETERINARY REFERRAL & EMERGENCY CENTER OF WESTBURY, Respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Joy M. Watson, J.), entered March 22, 2013. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiffs allege that the negligence of defendant, a veterinary facility, in failing to administer antibiotics after performing intestinal surgery on their dog, resulted in his death. After a nonjury trial, the District Court found in favor of defendant and, in a judgment entered on March 22, 2013, dismissed the action.

The standard of review on an appeal of a small claims judgment is whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).

In order to establish a prima facie case of veterinary malpractice, a plaintiff is required to show a deviation or departure from accepted veterinary practice, and that such departure was a proximate cause of the injury (see generally Kenny v Lesser, 281 AD2d 853 [2001]; see also Harrington v Berg, 5 Misc 3d 135[A], 2004 NY Slip Op 51488[U] [App Term 9th & 10th Jud Dists 2004]). Ordinarily, in a malpractice action, expert testimony is necessary to establish the applicable standard of care, as well as a deviation from such standard, which resulted in injury, unless the matter is one within the experience and observation of the average layperson (see generally 530 E. 89 Corp. v Unger, 43 NY2d 776 [1977]; Macey v Hassam, 97 AD2d 919 [1983]). Where conflicting expert testimony is presented, the trier of fact is entitled to accept one expert's opinion and to reject that of the other (see Clarke v Limone, 40 AD3d 571 [2007]; Vona v Wank, 302 AD2d 516, 517 [2003]), and the trier of fact's resolution of conflicting expert testimony is entitled to great weight (see Speciale v Achari, 29 AD3d 674 [2006]; see also Steginsky v Gross, 46 AD3d 671 [2007]).

Applying the narrow standard of review governing appeals in small claims actions (see UDCA 1807), and giving due deference to the trial court's findings and its assessment of the trial testimony (see Williams v Roper, 269 AD2d 125), we find that the judgment dismissing plaintiffs' cause of action for veterinary malpractice rendered substantial justice between the parties. A fair interpretation of the evidence supports a finding that defendant did not deviate or depart from accepted standards of veterinary practice in treating plaintiffs' dog.

Contrary to plaintiffs' contention, any objections to the qualifications of defendant's [*2]expert witness went to the weight to be given his testimony and not to its admissibility (see Smith v City of New York, 238 AD2d 500 [1997]), and any alleged lack of skill or expertise on his part was merely a factor to be considered by the trier of fact (see De Luca v Kameros, 130 AD2d 705, 705-706 [1987]). Moreover, there is no merit to plaintiffs' contention that the defense witness's questioning of plaintiffs' expert was improper. Since defendant's witness appeared on behalf of defendant, it was her right, pursuant to substantive law, to cross-examine plaintiffs' witness.

Although plaintiffs argue otherwise, there is nothing in the record to indicate that they were not given an adequate amount of time to testify or that the documents which they offered to the court were not admitted into evidence.

Plaintiffs' remaining arguments are without merit.

Accordingly, the judgment is affirmed.

Iannacci and Garguilo, JJ., concur.

Marano, P.J., taking no part.

Decision Date: March 17, 2015