Matthias v. Mary Immaculate Hospital — 274 A.D.2d 559

Majority

p. 559

Kernal Matthias et al., Appellants, v Mary Immaculate Hospital, Respondent.

[712 NYS2d 391]

—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Goldstein, J.), entered January 22, 1999, which, upon a jury verdict, is in favor of the defendant and against them, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

A verdict in favor of a defendant should not be set aside as against the weight of the credible evidence unless the preponderance in favor of the plaintiff was so great that the finding in favor of the defendant could not have been reached upon any fair interpretation of the evidence (see, Cerasuoli v Brevetti, 166 AD2d 403 , 404; Olsen v Chase Manhattan Bank, 10 AD2d 539 , affd 9 NY2d 829 ; Nicastro v Park, 113 AD2d 129 ). Here,

p. 560

the jury was entitled to accept the opinion of the defendant’s witness that the defendant did not depart from good and accepted standards of medicine in the treatment of the infant plaintiffs asthma. Thus, it cannot be said that the verdict in the defendant’s favor could not have been reached by a fair interpretation of the evidence.

The plaintiffs’ remaining contentions are without merit. Ritter, J. P., Sullivan, Florio and Feuerstein, JJ., concur.

Cases cited

Cerasuoli v. Brevetti 166 AD2d 403 N.Y. App. Div. 1990-10-01 at 404 p. 559
Olsen v. Chase Manhattan Bank 10 AD2d 539 N.Y. App. Div. 1960-05-31 p. 559
Olsen v. Chase Manhattan Bank 9 NY2d 829 N.Y. 1961-04-20 p. 559
Nicastro v. Park 113 AD2d 129 N.Y. App. Div. 1985-11-12 p. 559