Opinion
01-02-2015
Janice MAZELLA, as Administratrix of the Estate of Joseph Mazella, Deceased, Plaintiff–Appellant, v. William BEALS, M.D., Defendant.
Delduchetto & Potter, Syracuse (Ernest A. Delduchetto Of Counsel), Alessandra Deblasio, New York City, for Plaintiff–Appellant. Smith, Sovik, Kendrick Sugnet, P.C., Syracuse (Anthony R. Brighton of Counsel), for Defendant–Respondent.
Delduchetto & Potter, Syracuse (Ernest A. Delduchetto Of Counsel), Alessandra Deblasio, New York City, for Plaintiff–Appellant.
Smith, Sovik, Kendrick Sugnet, P.C., Syracuse (Anthony R. Brighton of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, FAHEY AND LINDLEY, JJ.
MEMORANDUM: Plaintiff commenced this medical malpractice and wrongful death action alleging that Elisabeth Mashinic, M.D. (defendant) was negligent in her treatment of plaintiff's decedent and that her negligence was a substantial factor contributing to the death of plaintiff's decedent by suicide. Plaintiff appeals from an amended judgment entered upon a jury verdict determining that, although defendant was negligent, her negligence was not a proximate cause of the death of plaintiff's decedent. Plaintiff failed to preserve for our review her contention that the verdict with respect to defendant was inconsistent with the verdict finding the codefendant liable, inasmuch as she failed to raise that contention before the jury was discharged (see Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125, rearg. denied 55 N.Y.2d 1039, 449 N.Y.S.2d 1030, 434 N.E.2d 1081 ; Schley v. Steffans, 79 A.D.3d 1753, 1753, 914 N.Y.S.2d 846 ). In any event, that contention is without merit. The claims of negligence with respect to the respective defendants were distinct and the treatment of plaintiff's decedent by the respective defendants was not dependent upon the actions of the other (cf. Midler v. Crane, 14 N.Y.3d 877, 879, 903 N.Y.S.2d 334, 929 N.E.2d 397, rearg. denied 15 N.Y.3d 821, 908 N.Y.S.2d 154, 934 N.E.2d 888 ; see generally Ledogar v. Giordano, 122 A.D.2d 834, 836–837, 505 N.Y.S.2d 899 ). Plaintiff also failed to preserve for our review her contention that the verdict is against the weight of the evidence by filing a motion pursuant to CPLR 4404(a) to set aside the verdict on that ground. In any event, that contention also is without merit. "A jury verdict will be set aside as against the weight of the evidence only when the evidence at trial ‘so preponderated in favor of the [losing party] that the verdict could not have been reached on any fair interpretation of the evidence’ ... ‘A verdict finding that a defendant was negligent but that such negligence was not a proximate cause of [decedent's death] is against the weight of the evidence only when [those] issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause’ " ( Schreiber v. University of Rochester Med. Ctr., 88 A.D.3d 1262, 1263, 930 N.Y.S.2d 750 ; see Lesio v. Attardi, 121 A.D.3d 1527, 1529, 993 N.Y.S.2d 810 ). That is not the case here. Plaintiff's decedent died 16 days after his discharge from inpatient care, where he was treated by defendant. The parties each presented expert testimony with respect to whether defendant's treatment of plaintiff's decedent and her follow-up plan for his care met the standard of care and whether any of the alleged claims of negligence was a substantial factor in decedent's death. "Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of another expert" ( Taylor v. Haque, 94 A.D.3d 978, 979, 942 N.Y.S.2d 560 ; see Sisson v. Alexander, 57 A.D.3d 1483, 1483–1484, 871 N.Y.S.2d 527, lv. denied 12 N.Y.3d 709, 881 N.Y.S.2d 18, 908 N.E.2d 926 ). As we noted in the appeal of the codefendant, this "trial was a prototypical battle of the experts" ( Mazella v. Beals [Appeal No. 3], 122 A.D.3d 1358, 1359, 997 N.Y.S.2d 849 [internal quotation marks omitted] ), and we conclude that the jury's finding that decedent's death was not caused by defendant's negligence " was a rational and fair interpretation of the evidence" ( id. at 1359 [internal quotation marks omitted] ).
It is hereby ORDERED that the amended judgment so appealed from is unanimously affirmed without costs.