Rivera v. City of N.Y.

• Decision Date: 11 January 2011
• Citation: 80 A.D.3d 595,915 N.Y.S.2d 281
• Parties: Frances RIVERA, etc., appellant-respondent, v. CITY OF NEW YORK, et al., respondents-appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 281

80 A.D.3d 595

Frances RIVERA, etc., appellant-respondent,

v.CITY OF NEW YORK, et al., respondents-appellants, et al., defendants.

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

Jan. 11, 2011.

Bonita E. Zelman, Lake Success, N.Y. (Jay L. Breakstone and Pollack Pollack Isaac & De Cicco [Brian J. Isaac] of counsel), for appellant-respondent.

Salvatore J. Russo (Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. [Edward J. Guardaro, Jr.], of counsel), for respondents-appellants.

PETER B. SKELOS, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from (1) a judgment of the Supreme Court, Kings County (Jacobson, J.), entered September 16, 2008, and (2) so much of an amended judgment of the same court entered September 24, 2008, as, upon a jury verdict in favor of her and against the defendants City of New York, New York City Health & Hospitals Corporation, Woodhull Medical & Mental Health Center, Adedokun Akinyooye, CynthiaB. Smith-Couch, Eric Sarpong, Samuel Agyare, and Maurice Wright, failed to award damages on the cause of action alleging wrongful death against those defendants, and the defendants City of New York, New York City Health & Hospitals Corporation, Woodhull Medical & Mental Health Center, Adedokun Akinyooye, Cynthia B. Smith-Couch, Eric Sarpong, Samuel Agyare, and Maurice Wright, cross-appeal from the judgment and from so much of the amended judgment as is in favor of the plaintiff and against them in the principal sum of $3,500,000.

ORDERED that the appeal and cross appeal from the judgment are dismissed, as the judgment was superseded by the amended judgment; and it is further,

ORDERED that the amended judgment is reversed insofar as appealed from, on the law and the facts, and the matter is remitted to the Supreme Court, Kings County, for the severance of the wrongful death cause of action and for a new trial on that cause of action on the issue of damages only against the respondents-appellants; and it is further,

ORDERED that the amended judgment is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

To establish a claim sounding in medical malpractice, a plaintiff must demonstrate that a defendant deviated or departed from good and accepted medical practice, and that the defendants' conduct was a proximate cause of the injuries claimed ( see DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674; Rodney v. North Shore Univ. Hosp., 286 A.D.2d 382, 383, 732 N.Y.S.2d 170). To sustain this burden, the plaintiff must, among other things, present expert testimony that the defendant's conduct constituted a deviation from the requisite standard of care ( see Roseingrave v. Massapequa Gen. Hosp., 298 A.D.2d 377, 379, 751 N.Y.S.2d 218).

Contrary to the respondents-appellants' contention, viewing the evidence in the light most favorable to the plaintiff ( see Dublis v. Bosco, 71 A.D.3d 817, 895 N.Y.S.2d 847), a valid line of reasoning exists by which a rational jury could have concluded that they departed from good and accepted standards of medical care and that their conduct was a substantial factor in causing the plaintiff's injuries ( see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 410 N.Y.S.2d 282, 382 N.E.2d 1145). Moreover, the jury verdict in favor of the plaintiff was not contrary to the weight of the evidence ( see Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625; Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184). "This trial was a prototypical battle of the experts, and the jury's acceptance of [plaintiff's] case was a rational and fair interpretation of the evidence" ( Johnston v. Joyce, 192 A.D.2d 1124, 596 N.Y.S.2d 625). Further, the damages award was not excessive, as it did not deviate materially from what would be reasonable...