Appellate Division of the Supreme Court of New York, Fourth DepartmentSep 28, 2001
286 A.D.2d 925 (N.Y. App. Div. 2001)
286 A.D.2d 925731 N.Y.S.2d 410

(1064) CA 00-01885.

September 28, 2001.

(Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — Negligence.)


Judgment unanimously affirmed without costs. Memorandum:

Plaintiff, individually and as guardian of her husband, commenced this medical malpractice action alleging defendants' liability for the catastrophic outcome of heart bypass surgery performed on him. Plaintiff contends that Supreme Court erred in failing to marshal the contentions of the parties; that the court erred in failing to direct the jury to return a special verdict; that cross-examination of plaintiff's expert regarding the possibility of disciplinary action against defendant Gary Grosner, M.D. was improper; that the court erred in admitting certain demonstrative or experimental evidence; that the court erred in permitting cross-examination of plaintiff's rebuttal witness beyond the scope of such rebuttal testimony; that the court improperly permitted defense counsel to refer to Grosner's deposition testimony during direct examination; that defense counsel made improper and prejudicial arguments during summation; and that the court erred in charging the jury that it is not negligence for a physician to permit a surgical resident to participate in a surgery.

The court's charge generally was proper. Although the court should have summarized the parties' factual contentions and legal theories, including plaintiff's various theories of liability ( see, Green v. Downs, 27 N.Y.2d 205, 208), plaintiff has demonstrated no prejudice as a result of the court's failure to do so ( see, Fasano v. Crivera, 260 A.D.2d 426, 427; Brown v. City of New York, 154 A.D.2d 325, 326).

Similarly, in the absence of prejudice to plaintiff, there is no need to reverse as a result of the court's failure to submit a special verdict sheet ( see, Suarez v. New York City Health Hosps. Corp., 216 A.D.2d 287; see also, Cirasuolo v. Cahill, 119 A.D.2d 986).

The court did not abuse its discretion in allowing two demonstrations ( see, Uss v. Town of Oyster Bay, 37 N.Y.2d 639, 641; Goldner v. Kemper Ins. Co., 152 A.D.2d 936, 937, lv denied 75 N.Y.2d 704). Such evidence may be admitted when it "tends to enlighten rather than to mislead the jury" ( Goldner v. Kemper Ins. Co., supra, at 937). There is no requirement of strict or absolute identity between the circumstances of the case and those of the demonstration; the conditions need only be "substantially the same as existed at the time of the occurrence of the event" ( Santucci v. Govel Welding, 168 A.D.2d 845, 846; see, Cramer v. Kuhns, 213 A.D.2d 131, 138, lv dismissed 87 N.Y.2d 860). A variation in circumstances affects the weight to be given to the demonstration but is not necessarily a basis for its exclusion ( see, Krute v. Mosca, 234 A.D.2d 622, 623; Goldner v. Kemper Ins. Co., supra, at 937). Here, testimony concerning the demonstrations was subject to cross-examination and subsequent expert rebuttal testimony, both of which criticized the demonstrations and minimized their significance ( see, Uss v. Town of Oyster Bay, supra, at 641; Matter of Rudell v. Commissioner of Health of State of N. Y., 194 A.D.2d 48, 50-51, lv denied 83 N.Y.2d 754; Goldner v. Kemper Ins. Co., supra, at 937). Under the circumstances, we see no prejudice to plaintiff.

We have examined plaintiff's remaining contentions and conclude that they are either unpreserved for our review or without merit.