Opinion
2001-09362
Argued January 28, 2003.
February 18, 2003.
In an action to recover damages for dental malpractice, the defendants appeal from a judgment of the Supreme Court, Nassau County (Davis, J.), dated September 27, 2001, which, upon a jury verdict, is in favor of the plaintiff and against them in the principal sum of $250,000.
Gallagher, Walker, Bianco Plastaras (Mauro Goldberg Lilling, LLP, Great Neck, N.Y. [Katherine Herr Solomon and Caryn L. Lilling of counsel]), for appellants.
McKenna, Siracusano, Fehringer Chianese, East Rockaway, N.Y. (Albert Chianese and Judith Ellen Stone, Merrick, N.Y., of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
To establish a prima facie case of dental malpractice, the plaintiff was required to show a deviation or departure from accepted practice, and that such departure was a proximate cause of her injury (see Holton v. Sprain Brook Manor Nursing Home, 253 A.D.2d 852; Falotico v. Frankel, 232 A.D.2d 607). In a malpractice action, a plaintiff need only offer sufficient evidence from which a reasonable person may conclude that it was more probable than not that the injury was caused by the defendant (see Healy v. Spector, 287 A.D.2d 541; Holton v. Sprain Brook Manor Nursing Home, supra at 852), and the evidence presented by the plaintiff "need not eliminate every other possible cause" of the resulting injury (Pasquale v. Miller, 194 A.D.2d 597, 598; see Scariati v. St. John's Queens Hosp., 172 A.D.2d 817).
The jury determination that the defendant David M. Wank committed dental malpractice was supported by legally sufficient evidence, since there was a 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 (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499).
In addition, a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict on any fair interpretation of the evidence (see Baldwin v. City of New York, 290 A.D.2d 465, 466; Nicastro v. Park, 113 A.D.2d 129, 134). In making such a determination, great deference must be afforded to the fact-finding function of the jury, which had an opportunity to see and hear the witnesses (see Aprea v. Franco, 292 A.D.2d 478, 479; Cicalese v. Caruana, 274 A.D.2d 540, 541). Where, as here, conflicting expert testimony is presented, the jury is entitled to accept one expert's opinion and reject that of the other (see Fernandez v. Continental Airlines, 251 A.D.2d 369, 370; Ventriglio v. Active Airport Serv., 234 A.D.2d 451, 453; Burgos v. Lovell Realty, 229 A.D.2d 558, 559). Contrary to the defendants' contentions, the verdict was supported by a fair interpretation of the evidence (see Nicastro v. Park, supra at 129).
We also find that the award of damages did not deviate materially from what would be reasonable compensation (see CPLR 5501[c]).
ALTMAN, J.P., FLORIO, H. MILLER and ADAMS, JJ., concur.