Opinion
Argued January 13, 2000
March 17, 2000
In an action to recover damages for medical malpractice, etc., the defendant Jose A. Aguero appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated December 3, 1998, which granted the plaintiffs' motion to set aside a jury verdict in his favor finding that his conduct was not a deviation from accepted medical practice, and for judgment as a matter of law on that issue, and ordered a new trial on the issue of whether the deviation was a substantial factor in causing the infant plaintiff's injuries and, if necessary, for an assessment of damages.
Lewis, Johs, Avallone, Aviles Kaufman, East Setauket, N Y (John M. Denby of counsel), for appellant.
Robert F. Danzi, Westbury, N.Y. (Joan M. Ferretti and Mona Engel of counsel), for respondents.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, SONDRA MILLER, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The record is replete with evidence which preponderates heavily in favor of the plaintiffs and establishes that the defendant Jose A. Aguero deviated from accepted medical practice in his treatment of the infant plaintiff. Thus, the court properly set aside the jury verdict in favor of Aguero as against the weight of the evidence (see, Keegan v. Prout, 215 A.D.2d 629, 630; Plant v. Shalit, 158 A.D.2d 676, 677; Nicastro v. Park, 113 A.D.2d 129, 134). The plaintiffs were also entitled to judgment as a matter of law on this issue because there was "no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499; see also, Nicastro v. Park, supra, at 132; Stachnik Marina, Ltd. v. Commercial Union Ins. Co., A.D.2d [2d Dept., July 12, 1999]).
SANTUCCI, J.P., JOY, S. MILLER, and H. MILLER, JJ., concur.