Scandell v. Salerno

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MANGANO
• Citation: Scandell v. Salerno, 547 N.Y.S.2d 581, 155 A.D.2d 523 (N.Y. App. Div. 1989)
• Decision Date: 13 November 1989
• Parties: Deborah SCANDELL, etc., Appellant, v. Hugo R. SALERNO, M.D., Respondent.

Page 581

547 N.Y.S.2d 581

155 A.D.2d 523

Deborah SCANDELL, etc., Appellant, v. Hugo R. SALERNO, M.D., Respondent.

Supreme Court of New York, Appellate Division Second Department.

November 13, 1989

Birbrower, Montalbano, Condon & Frank, P.C., New City (O'Hara & Augello [Thomas N. O'Hara] of counsel), for appellant. Wilson, Bave, Conboy & Bave, P.C., White Plains (William H. Bave, Jr., of counsel), for respondent.

In an action to recover damages for wrongful death and conscious pain and suffering resulting from medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Weiner, J.), entered March 8, 1988, which, upon a jury verdict in favor of the defendant, dismissed the complaint. ORDERED that the judgment is affirmed, with costs. The plaintiff's decedent, Lawrence Scandell, presented himself to the defendant doctor on May 22, 1984, complaining of shortness of breath which became worse with exertion. The defendant diagnosed Scandell's condition as bronchitis and commenced treatment. He saw Scandell twice more before July 2, 1984, when Scandell died. An autopsy revealed that Scandell died of coronary artery disease. Our review of the record, including the contradictory opinions of the medical experts, reveals that the jury's determination that the defendant was negligent, but that his negligence was not a proximate cause of the decedent's death, was not against the weight of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 133-134, 495 N.Y.S.2d 184; see also, Frank v. Fischer, 142 A.D.2d 665, 666, 530 N.Y.S.2d 597). We further note that the plaintiff failed to object to the trial court's recharge on proximate cause, so the issue of the propriety of the recharge was not preserved for appellate review (see, CPLR 4110-b). Further, reversal as a matter of discretion is not warranted because the claimed...