Cerasuoli v. Brevetti

• Decision Date: 01 October 1990
• Parties: Anna Maria CERASUOLI, et al., Appellants, v. Raymond BREVETTI, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 468

560 N.Y.S.2d 468

166 A.D.2d 403

Anna Maria CERASUOLI, et al., Appellants, v. Raymond BREVETTI, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Oct. 1, 1990.

DiJoseph & Gluck, New York City (Steven DiJoseph and Barry Salzman, of counsel), for appellants.

Peltz, Walker, Brennan & Dubinsky, New York City (Miles S. Reiner and Eliot R. Clauss, of counsel), for respondent Raymond Brevetti.

Bower & Gardner, New York City (Leah C. Greenman and Howard R. Cohen, of counsel), for respondent Methodist Hosp.

Before KUNZEMAN, J.P., and EIBER, SULLIVAN and MILLER, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Bellard, J.), dated October 17, 1988, which, upon a jury verdict, is against them and in favor of the defendants.

ORDERED that the judgment is affirmed, with one bill of costs.

On November 16, 1983, the plaintiff Anna Maria Cerasuoli underwent surgery at Brooklyn Hospital for the removal of a needle embedded in the greater omentum of her abdominal cavity. The plaintiffs thereafter commenced the instant action against the defendants Dr. Brevetti and Methodist Hospital, alleging, inter alia, that they departed from good and accepted medical and surgical practice in causing and permitting a surgical needle to remain in Mrs. Cerasuoli after the completion of an abdominal hysterectomy performed by Dr. Brevetti on April 7, 1981. After extensive expert testimony concerning the surgical and needle count procedures utilized by the defendants, as well as other expert testimony bearing upon the identification of the needle removed from Mrs. Cerasuoli, the jury found in favor of the defendants.

On appeal, the plaintiffs contend that inflammatory comments made by the counsels for the defense during summation and the court's failure to give the jury a curative charge were highly prejudicial and deprived them of a fair trial. Upon a review of the record, however, we find that these comments, which primarily referred to alternate ways in which the needle could have become embedded in Mrs. Cerasuoli's abdomen, constituted fair comment upon the evidence, and were within the bounds of the wide latitude allowed to counsel in summation (see, Braun v. Ahmed, 127 A.D.2d 418, 421-422, 515 N.Y.S.2d 473; Heberer v. Nassau Hosp., 119 A.D.2d 729, 730, 501 N.Y.S.2d 143).

The plaintiffs further contend that the trial court improperly limited the scope of their cross-examination of the defendant Brevetti's expert witness by precluding inquiry into the expert's employment as a consultant to Dr. Brevetti's insurance company. Upon our review of the record, we find that the trial court acted well within its discretionary powers to control the case (see, Feldsberg v. Nitschke, 49 N.Y.2d 636, 427 N.Y.S.2d 751, 404 N.E.2d 1293; Selly v. Port of N.Y. Auth., 36 A.D.2d 861, 862, 321 N.Y.S.2d 683), and achieved a fair balance between the plaintiffs' right to attack the expert witness's credibility and the prejudicial effect of introducing the fact of Dr. Brevetti's insurance coverage (see, Richardson, Evidence § 169, at 137-138; § 503, at 492 [Prince, 10th...