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MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff’s motion to set aside the verdict in this medical malpractice case should not have been granted. The jury found that the doctor’s postsurgical negligence (ordering an MRI of plaintiff’s hand rather than her wrist) was not a substantial factor in causing plaintiff’s injuries:

… [W]e conclude that the issues of negligence and proximate cause were not so inextricably interwoven as to make it logically impossible to find one without the other… . Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view … , and we conclude that defendants are entitled to that presumption here.

We also agree with defendants that the verdict was not against the weight of the evidence and that the court therefore erred in granting plaintiff’s posttrial motion. It is well settled that a jury verdict will be set aside as against the weight of the evidence only when the evidence at trial so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence … . Applying that principle here, we conclude that there is a fair interpretation of the evidence pursuant to which the jury could have found that, notwithstanding the error in ordering the incorrect MRI, defendant did not cause any postsurgery injuries alleged by plaintiff … . We further conclude that the “trial was a prototypical battle of the experts, and the jury’s acceptance of defendants’ case was a rational and fair interpretation of the evidence”… . Capierseo v Tomaino, 2018 NY Slip Op 02917, Fourth Dept 4-27-18

​NEGLIGENCE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/MEDICAL MALPRACTICE (MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/CIVIL PROCEDURE (SET ASIDE VERDICT, MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))/VERDICT, MOTION TO SET ASIDE (MEDICAL MALPRACTICE, MOTION TO SET ASIDE THE VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, THE JURY REASONABLY FOUND THE DOCTOR’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF PLAINTIFF’S INJURIES (FOURTH DEPT))

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ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.
DEFENDANT WAS NOT ADVISED THE SENTENCE TO WHICH HE AGREED WHEN PLEADING GUILTY WAS FIXED REGARDLESS OF THE OUTCOME OF THE SECOND VIOLENT FELONY OFFENDER HEARING, PLEA VACATED (FOURTH DEPT).
THE COUNTY DEMONSTRATED THERE WAS NO SPECIAL RELATIONSHIP WITH PLAINTIFF’S DECEDENT, THE DEFENDANTS’ ACTIONS WERE DISCRETIONARY AND THEREFORE PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, AND THERE IS NO CAUSE OF ACTION IN NEW YORK FOR NEGLIGENT INVESTIGATION; PLAINTIFF’S WRONGFUL DEATH ACTION BASED UPON THE DEFENDANTS’ ALLEGED FAILURE TO PROTECT PLAINTIFF’S DECEDENT FROM ABUSE BY FAMILY MEMBERS DISMISSED (FOURTH DEPT).
ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER.
A DETECTIVE WAS PROPERLY ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO; TESTIMONY ABOUT THE “BLINDED” PHOTO ARRAY IDENTIFICATION PROCEDURE WAS PROPERLY ALLOWED; THE DEFENSE CROSS-EXAMINATION ABOUT A WITNESS’S CRIMINAL HISTORY SHOULD NOT HAVE BEEN CURTAILED; ANY ERRORS DEEMED HARMLESS (FOURTH DEPT).
PURSUANT TO THE EMERGENCY OR DISASTER TREATMENT PROTECTION ACT (EDTPA), HEALTH CARE WORKERS WHO TREATED COVID-19 PATIENTS WERE IMMUNE FROM CIVIL LIABILITY; THE EDTPA HAS SINCE BEEN REPEALED; THE REPEAL SHOULD NOT BE APPLIED RETROACTIVELY; THE CAUSES OF ACTION ALLEGING IMPROPER TREATMENT FOR COVID-19 DURING THE TIME THE EDTPA WAS IN EFFECT MUST BE DISMISSED (FOURTH DEPT).
FAILURE TO MENTION RESTITUTION IN DEFENDANT’S PRESENCE REQUIRES VACATION OF THE SENTENCE; DISCREPANCY BETWEEN THE AMOUNT OF RESTITUTION IN THE PLEA AGREEMENT AND THE CONFESSION OF JUDGMENT MUST BE REMEDIED UPON RESENTENCING (FOURTH DEPT).
THE PEOPLE DID NOT EXERCISE DUE DILIGENCE BEFORE STATING IN THE CERTIFICATE OF COMPLIANCE (COC) THAT COMPLAINANT DID NOT HAVE A CRIMINAL RECORD AND ANNOUNCING READINESS FOR TRIAL; IF DEFENSE COUNSEL KNEW OF COMPLAINANT’S CRIMINAL RECORD, THE DEFENSE WAS STATUTORILY REQUIRED TO ALERT THE PEOPLE TO THE DEFECT IN THE COC; MATTER REMITTED FOR DETERMINATION OF THE SPEEDY-TRIAL MOTION; EXTENSIVE TWO-JUSTICE DISSENT (FOURTH DEPT).

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