Bertan v. Richmond Memorial Hosp. and Health Center

• Decision Date: 29 June 1987
• Citation: 517 N.Y.S.2d 165,131 A.D.2d 799
• Parties: Elaine BERTAN, Appellant, v. RICHMOND MEMORIAL HOSPITAL AND HEALTH CENTER, Defendant, William Weinstein, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 165

517 N.Y.S.2d 165

131 A.D.2d 799

Elaine BERTAN, Appellant, v. RICHMOND MEMORIAL HOSPITAL AND HEALTH CENTER, Defendant, William Weinstein, Respondent.

Supreme Court, Appellate Division,

Second Department.

June 29, 1987.

Aaron J. Broder, New York City (Stanley N. Richter, of counsel), for appellant.

Morris & Duffy, New York City (Patricia D'Alvia and Alan H. Sproul, on the brief), for respondent.

Before THOMPSON, J.P., and BRACKEN, LAWRENCE and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, the plaintiff appeals (1) from an order of the Supreme Court, Richmond County (McBrien, J.), dated August 16, 1985, which denied her motion, inter alia, for a new trial; and (2) as limited by her brief, from so much of a judgment of the same court, entered October 18, 1985, as, upon a jury verdict, is in favor of the defendant William Weinstein and against her, upon a jury verdict.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501).

The record establishes that the jury's verdict in favor of the respondent was based upon a fair interpretation of the evidence, and, thus, was not against the weight of the credible evidence (see, Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).

The plaintiff's claim that the trial court erroneously denied her application to present rebuttal testimony in order to contradict the opinion of one of the defense experts that had Dr. Weinstein caused the injury complained of, i.e., a transected ureter, the plaintiff "would never have survived a month", or until the time the injury was discovered, is without merit. While "a party has the right to impeach or discredit the testimony of an opponent" upon rebuttal (Ankersmit v. Tuch, 114 N.Y. 51, 55, 20 N.E. 819; see, Frias v. Fanning, 119 A.D.2d 796, 501 N.Y.S.2d 423; Richardson, Evidence § 517 ), we perceive no abuse of discretion in this regard, particularly since, as the trial court observed, the plaintiff's expert, whom she sought to recall to the stand, was specifically and extensively questioned as to the effects that a severed ureter would have upon a patient. The plaintiff's remaining allegations of error concerning the conduct of the trial, which are presented in a manner not suitable for an appellate brief (see, CPLR 5528), are similarly unavailing.

Finally, the trial court properly denied the plaintiff's motion for a new trial based on newly discovered evidence or for a hearing to delve into the...