Nicastro v. Park

Decision Date12 November 1985
Citation113 A.D.2d 129,495 N.Y.S.2d 184
PartiesDorothy NICASTRO, etc., Plaintiff-Respondent, v. Marion PARK, etc., et al., Appellants; Brunswick Hospital Center, et al., Defendants-Respondents.
CourtNew York Supreme Court — Appellate Division

Rivkin, Leff, Sherman & Radler, Garden City (Frank L. Amoroso and Nancy K. Eisner, of counsel), for appellant Marion Park, as Executrix of the Estate of Dr. Fred Eugene Park, deceased.

Kelly, Rode, Kelly & Burke, Mineola (Joseph A. Suozzi and Daniel M. Kolko, of counsel), for appellant Barbara S. Mermelstein, as Ex'r of the Estate of Richard H. Mermelstein, deceased.

Shayne, Dachs, Stanisci & Corker, Mineola (Norman H. Dachs and Steven M. Jaeger, on brief), for plaintiff-respondent.

Diamond, Rutman & Costello (Seligson, Rothman & Rothman, New York City New York City, of counsel), for defendants-respondents Brunswick Hosp. Center.

Before LAZER, J.P., and MANGANO, BRACKEN and NIEHOFF, JJ.

LAZER, Justice Presiding.

Resolution of these appeals involves the proper standard to be applied by a trial court in deciding a motion to set aside a jury verdict as contrary to the weight of the evidence. At specific issue is the correctness of the trial court's grant of a motion to set aside a jury's verdict in favor of appellants in a medical malpractice action in which it was claimed that the death of Alexander Nicastro was brought about by the negligence of Drs. Fred Eugene Park and Richard H. Mermelstein, plus certain others against whom the complaint was dismissed during the trial. Since Dr. Mermelstein died prior to the commencement of the action and Dr. Park died subsequent to its commencement but before the trial, none of the principal participants in the events underlying the action survived to testify at the trial. As a result, all parties relied heavily on relevant medical records and other documentary evidence as well as upon portions of an examination before trial of Dr. Park. There was also, of course, testimony by numerous medical experts.

At the conclusion of the lengthy trial, the jury rendered a special verdict in favor of appellants. The first question relating to each appellant in the special verdict form was whether the defendant was negligent, and, as to each, the jury's answer was "no". The jury was also instructed that if it answered the negligence question affirmatively with respect to any defendant, it was to determine whether the negligence of that defendant was a proximate cause of Nicastro's death. The jury found that neither defendant was negligent and the proximate cause questions were thus never reached.

Upon hearing the jury's verdict, plaintiff moved to set it aside and for a new trial pursuant to CPLR 4404(a). The court granted the motion on two separate grounds, finding that the verdict was against the weight of the evidence and that the interest of justice demanded a new trial because the interests of the decedent's children had not been properly protected by their mother, who had brought the suit as administratrix and on her own behalf. The appeals are from the order embodying that decision.

We conclude that the trial court did not abuse its discretion in finding that the verdict was against the weight of the evidence. In so holding, we note that appellants' arguments addressed to the proximate cause issue are misplaced, for the jury never reached that question and a prima facie case as to proximate cause was made out even though it was something short of overwhelming. Nor need we reach the issue of whether the children's interests were properly protected by the mother because a new trial is necessary in any event and we have been informed that Dorothy Nicastro has since been replaced as administratrix by the Suffolk County Public Administrator.

In contending that the trial court abused its discretion by setting aside the verdict as against the weight of the evidence, appellants vigorously argue that the court improperly substituted its judgment for that of the jury. The plaintiff responds that the strength of her proof of negligence was such that this court should not interfere with the discretionary action of the Trial Judge who was in a better position to assess the testimony. The question, then, is whether the court properly exercised its discretion under the circumstances.

Judicial dissatisfaction with jury verdicts is hardly a new phenomenon, although at one time the consequences of judicial displeasure were potentially somewhat greater. Blackstone noted that English judges were once permitted to fine, imprison or otherwise punish juries that persisted in returning verdicts contrary to the court's instructions in criminal cases, although the practice had been abandoned by the time the Commentaries were written (4 Blackstone, Commentaries on the Laws of England, ch. 27, at p. 361 ).

On the civil side, it was well settled by Blackstone's day that a jury verdict could be set aside and a new trial ordered if the verdict was contrary to the evidence or if for some other reason it appeared that substantial justice had not been done. This was deemed to be an intrinsic part of a viable judicial system, for it was believed that the acceptance of clearly erroneous verdicts would cause the courts to fall into disrepute (see, 3 Blackstone, Commentaries on the Laws of England, ch. 24, at pp. 387-393 ). Thus the doctrine that permits judicial interference with jury verdicts had its origin in the idea that for a judicial system to function properly it must be perceived by the public as normally reaching the correct result. While this certainly remains true, current concepts may have shifted the focus to the desire to provide every litigant with substantial justice.

The power to set aside a jury verdict and order a new trial is an inherent one (McCarthy v. Port of N.Y. Auth., 21 A.D.2d 125, 127, 248 N.Y.S.2d 713; Siegel, New York Prac. § 406, at p. 537; 66 C.J.S., New Trial, § 2) which is codified in New York in CPLR 4404(a). That statute provides that a court may order a new trial "the verdict is contrary to the weight of the evidence, in the interest of justice or where the jury cannot agree". The power is a broad one intended to ensure that justice is done (see, 4 Weinstein-Korn-Miller, NY Civ Prac, par 4404.02), but the proper standard for setting aside a jury verdict is elusive and has long defied precise definition (see, 3 Blackstone, Commentaries on the Laws of England, ch. 24, at p. 387 Mann v. Hunt, 283 App Div 140, 126 N.Y.S.2d 823; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.16). Nevertheless, a close examination of the precedents reveals several principles that may be of assistance in outlining the parameters of the judicial function on such a motion.

Initially, it must be reemphasized that whether a jury verdict is against the weight of the evidence is essentially a discretionary and factual determination which is to be distinguished from the question of whether a jury verdict, as a matter of law, is supported by sufficient evidence (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; accord, Dominquez v. Manhattan & Bronx Surface Tr. Operating Auth., 46 N.Y.2d 528, 532, 415 N.Y.S.2d 634, 388 N.E.2d 1221; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., pars. 4404.02, 4404.06). As the Court of Appeals has observed, "these two inquiries may appear somewhat related, they actually involve very different standards and may well lead to disparate results" (Cohen v. Hallmark Cards, supra, 45 N.Y.2d at p. 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145). To sustain a determination that a jury verdict is not supported by sufficient evidence, as a matter of law, there must be "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, supra, at p. 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; accord, Licari v. Elliott, 57 N.Y.2d 230, 239-240, 455 N.Y.S.2d 570, 441 N.E.2d 1088). The test is a harsh one because a finding that a jury verdict is not supported by sufficient evidence leads to a directed verdict terminating the action without resubmission of the case to a jury (see, e.g., Benjamin v. City of New York, 64 N.Y.2d 44, 484 N.Y.S.2d 525, 473 N.E.2d 753; Licari v. Elliott, supra, 57 N.Y.2d at pp. 239-240, 455 N.Y.S.2d 570, 441 N.E.2d 1088).

The criteria for setting aside a jury verdict as against the weight of the evidence are necessarily less stringent, for such a determination results only in a new trial and does not deprive the parties of their right to ultimately have all disputed issues of fact resolved by a jury (Cohen v. Hallmark Cards, supra, 45 N.Y.2d at p. 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145; McDonald v. Metropolitan St. Ry. Co., 167 N.Y. 66, 60 N.E. 282; O'Boyle v. Avis Rent-A-Car System, 78 A.D.2d 431, 439, 435 N.Y.S.2d 296; cf. Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). Whether a jury verdict should be set aside as contrary to the weight of the evidence does not involve a question of law, but rather requires a discretionary balancing of many factors (Cohen v. Hallmark Cards, supra, 45 N.Y.2d at p. 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Mann v. Hunt, 283 App.Div. 140, 126 N.Y.S.2d 823, supra; Walsh v. Morris, 88 A.D.2d 673, 450 N.Y.S.2d 920; see, Durante v. Frishling, 81 A.D.2d 631, 438 N.Y.S.2d 128,appeal dismissed 54 N.Y.2d 833; Facteau v. Wenz, 78 A.D.2d 931, 433 N.Y.S.2d 238). The discretionary nature of this inquiry has been further highlighted by various determinations of the Court of Appeals declining to review motions to set aside verdicts on the ground that it "cannot re-examine the Appellate Division's exercise of discretion" in this area (Gutin v. Mascali & Sons, 11 N.Y.2d 97, 98, 226 N.Y.S.2d 434, 181 N.E.2d 449; accord, Moffatt v. Moffatt, 62 N.Y.2d...

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