Oubre v. Carpenter
| Decision Date | 03 July 1997 |
| Docket Number | No. 1,1 |
| Citation | 241 A.D.2d 964,661 N.Y.S.2d 346 |
| Parties | James OUBRE, Individually and as Father and Natural Guardian of Sarah Oubre, Respondent-Appellant, v. Robert E. CARPENTER, M.D., Ibrahim Ayad, M.D., Richard C. Neri, M.D., Trudy Baker, M.D., Mark Severino, M.D., Respondents, Millard Fillmore Hospital, Millard Fillmore Suburban Hospital, Appellants-Respondents, Johnny Reyes, M.D., Appellant, et al., Defendants. (Appeal) |
| Court | New York Supreme Court — Appellate Division |
Brown and Tarantino by Ann Campbell, Buffalo, for Appellant Johnny Reyes.
Quinn, McGarry and Caffery, P.C. by Thomas Deboy, Buffalo, for Appellants-Respondents Millard Fillmore Hospital, et al.
Paul William Beltz, P.C. by Robert Nichols, Buffalo, for Respondents-Appellants Oubre.
Gibson, McAskill and Crosby by Victor Oliveri, Buffalo, for Respondents Carpenter, Ayad and Neri.
Before GREEN, J.P., and PINE, LAWTON, BOEHM and FALLON, JJ.
Supreme Court did not err in granting a new trial against defendant Johnny Reyes, M.D., and against defendants Millard Fillmore Hospital and Millard Fillmore Suburban Hospital (collectively Hospital) on the basis of vicarious liability based upon the alleged negligence of Dr. Reyes. Viewing the evidence, as we must, in the light most favorable to Dr. Reyes and the Hospital (see, Meizlik v. Benderson Dev. Co., 51 A.D.2d 676, 677, 378 N.Y.S.2d 533), we conclude that the court's finding that the verdict with respect to those defendants is contrary to the weight of the evidence is not unreasonable, and thus "we will not intervene to reverse that finding" (Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, 976, 499 N.Y.S.2d 525, lv. denied 68 N.Y.2d 608, 506 N.Y.S.2d 1033, 498 N.E.2d 435).
By failing to move for a mistrial on the ground that he was denied a fair trial by the improper trial tactics of Dr. Reyes' attorney, plaintiff has failed to preserve that issue for our review (see, Mussari v. Davidson, 93 A.D.2d 996, 461 N.Y.S.2d 626).
There is no merit to the contention of plaintiff that the court erred in granting defendants a total of 15 peremptory challenges and allowing him only six peremptory challenges. Defendants here were not so united in interest to be considered a single party (see, Koperda v. Town of Whitestown, 224 A.D.2d 944, 637 N.Y.S.2d 899; Liemer v. Kings Highway Hosp. Ctr., 140 Misc.2d 94, 96-97, 529 N.Y.S.2d 967).
The court did not err in denying plaintiff's request to charge that, if the jury found...
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Haley M.T. v. Penn Yan Cent. Sch. Dist.
...order settling the record, and her contentions with respect to that order therefore are not properly before us ( see Oubre v. Carpenter, 241 A.D.2d 964, 965, 661 N.Y.S.2d 346). It is hereby ORDERED that said appeal from the order insofar as it concerned placement is unanimously dismissed an......
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Karam v. Adirondack Neurosurgical Specialists, P.C.
...seek an adjournment of the trial or a mistrial ( see Romeo v. Haranek, 15 A.D.2d 588, 589, 222 N.Y.S.2d 166; see also Oubre v. Carpenter, 241 A.D.2d 964, 661 N.Y.S.2d 346). Indeed, plaintiff opposed defendants' request for a mistrial ( see Boyd v. Manhattan & Bronx Surface Tr. Operating Aut......
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... ... finding in the Statement that she violated a Hospital policy is inadmissible on the ground that she is not an employee of the Hospital (see, Oubre v. Carpenter, 241 A.D.2d 964, 661 N.Y.S.2d 346) ... Although plaintiff failed to preserve this issue for our review by a timely ... ...