Brown v. City of New York

47 N.Y.2d 927 (1979)

Margaret Brown, Respondent-Appellant, v. City of New York, Appellant-Respondent.

Court of Appeals of the State of New York.

Argued May 31, 1979.

Decided June 26, 1979.

Allen G. Schwartz, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant-respondent.

Thomas R. Newman, Aaron J. Broder and Steven Di Joseph for respondent-appellant.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*928MEMORANDUM.

The judgment appealed from should be affirmed. Viewing the evidence in the record in the light most favorable to the plaintiff (see Parvi v City of Kingston, 41 N.Y.2d 553), we agree with the Appellate Division that she made out a prima facie case. Without more, the record reveals that the testimony of plaintiff's medical expert provided a basis for a finding that defendant's doctors deviated from accepted medical practice when they failed to further explore the nature of the orange pills plaintiff disclosed she had taken so that they might eliminate the possibility that her symptoms were drug-induced rather than systemic, and that therefore surgery was contraindicated.

As to the cross appeal, the plaintiff having stipulated to the "reduction" of damages, her appeal does not lie and, accordingly, is dismissed (Dudley v Perkins, 235 N.Y. 448).

Judgment affirmed, with costs to plaintiff, and plaintiff's cross appeal dismissed, without costs, in a memorandum.