Wilson v. Kane

—In an action to recover damages for dental malpractice, etc., the defendants appeal from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered June 21, 1995, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $60,000.

Ordered that the judgment is reversed, on the law, with costs, and a new trial is granted on the issue of damages only. The findings of fact as to liability are affirmed.

We agree with the defendants that "[o]n this record [they were] entitled to have the jury consider, in mitigation of damages, whether there was any negligence on the part of the plaintiff * * * subsequent to the alleged malpractice” (Dunn v Catholic Med. Ctr., 55 AD2d 597 , citing Carpenter v Blake, 75 NY 12 , 24; see also, Ferrara v Leventhal, 56 AD2d 490 ). This error deprived the defendants of a fair trial with respect to the jury’s assessment of damages. Because the jury’s verdict as to liability was not against the weight of the evidence, the new