Novikov v. Zamdborg

• Decision Date: 14 December 2010
• Citation: Novikov v. Zamdborg, 913 N.Y.S.2d 295, 79 A.D.3d 833 (N.Y. App. Div. 2010)
• Parties: Yuriy NOVIKOV, etc., appellant, v. Yury ZAMDBORG, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 295

79 A.D.3d 833

Yuriy NOVIKOV, etc., appellant,

v.Yury ZAMDBORG, etc., et al., respondents, et al., defendants.

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

Dec. 14, 2010.

Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), appellant.

Patrick S. Adams, PLLC, for respondent Yury Zamdborg; Gordon & Silber, P.C., for respondent Isaia Avraham; McAloon & Friedman, P.C., for respondent John Costa (Mauro Goldberg & Lilling LLP, Great Neck, N.Y. [Caryn L. Lilling and Jennifer B. Ettinger], of counsel for all respondents) (one brief filed).

WILLIAM F. MASTRO, J.P., MARK C. DILLON, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Steinhardt, J.), entered July 1, 2009, which, upon a jury verdict, is in favor of the defendants Yury Zamdborg, John Costa, and Isaia Avraham and against him, dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed, with costs.

Contrary to the plaintiff's contention, comments made during defense openings and summation were not improper, as they were based on evidence presented at trial, and the questions posed to witnesses by defense counsel, and testimony of defense experts were proper ( see Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348; Plainview Water Dist. v. Exxon Mobil Corp., 66 A.D.3d 754, 755, 888 N.Y.S.2d 521; Friedman v. Marcus, 32 A.D.3d 820, 821 N.Y.S.2d 136).

The plaintiff waived any claim that the decedent's medical records from Lenox Hill Hospital, with the exception of her autopsy report, should have been redacted, as the plaintiff submitted those records into evidence at the beginning of the trial and did not request that they be redacted until after the jury began deliberations ( see Plantation House & Garden Prods. v. R-Three Invs., 285 A.D.2d 539, 540, 728 N.Y.S.2d 181; see also People v. Soberanis, 289 A.D.2d 343, 344, 734 N.Y.S.2d 70). In any event, the medical records were properly admitted, as they were germane to the diagnosis and treatment of the decedent ( see Bruce-Bishop v. Jafar, 302 A.D.2d 345, 753 N.Y.S.2d 890; Moran v. Demarinis, 152 A.D.2d 546, 547, 543 N.Y.S.2d 480).

The plaintiff's contention that the jury verdict was inconsistent is without merit ( see Lovett v. Interfaith Med. Ctr., 52 A.D.3d 578, 580, 860 N.Y.S.2d 172; Sukhoo v. City of...