Ferreira v. Wyckoff Heights Med. Ctr.

• Decision Date: 01 February 2011
• Citation: 915 N.Y.S.2d 631,81 A.D.3d 587
• Parties: Lucia FERREIRA, etc., plaintiff-respondent, et al., plaintiff, v. WYCKOFF HEIGHTS MEDICAL CENTER, defendant third-party plaintiff-appellant, et al., defendants; Irving Spodek, etc., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 631
81 A.D.3d 587

Lucia FERREIRA, etc., plaintiff-respondent, et al., plaintiff,
v.
WYCKOFF HEIGHTS MEDICAL CENTER, defendant third-party plaintiff-appellant, et al., defendants;
Irving Spodek, etc., third-party defendant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 1, 2011.

915 N.Y.S.2d 632

Arshack & Hajek, PLLC (Mauro Goldberg & Lilling, LLP, Great Neck, N.Y. [Caryn L. Lilling and Katherine Herr Solomon], of counsel), for defendant third-party plaintiff-appellant.

Theodore Pavlounis (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), for plaintiff-respondent.

Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for third-party defendant-respondent.

JOSEPH COVELLO, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

81 A.D.3d 587

In an action to recover damages for medical malpractice, the defendant third-party plaintiff appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term for the 2nd, 11th, and 13th Judicial Districts dated May 22, 2009, as (1) affirmed so much of a judgment of the Civil Court, Kings County (Sweeney, J.), entered March 28, 2007, as,

915 N.Y.S.2d 633

upon a jury verdict, and upon an order of the same court dated July 5, 2006, denying its motion to set aside the jury verdict pursuant to CPLR 4404, was in favor of the plaintiff in her individual capacity and against it in the principal sum of $1,000,000, and (2) affirmed a judgment of the same court entered December 5, 2006, which dismissed the third-party complaint.

ORDERED that the order dated May 22, 2009, is affirmed insofar as appealed from, with one bill of costs.

The defendant third-party plaintiff, Wyckoff Heights Medical Center (hereinafter WHMC), contends that the jury's finding that the plaintiff, Lucia Ferreira, was negligent was inconsistent

81 A.D.3d 588

with the jury's finding that the plaintiff's negligence was not a substantial factor in bringing about the premature delivery and death of the plaintiff's baby (hereinafter the decedent). However, this contention is without merit. The issues were not so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause ( see Ward v. Watson, 72 A.D.3d 808, 900 N.Y.S.2d 313; Jankauskas v. Sandberg, 71 A.D.3d 1090, 898 N.Y.S.2d 200; Rubin v. Pecoraro, 141 A.D.2d 525, 529 N.Y.S.2d 142). The verdict can be reconciled with a reasonable view of the...