Kennedy v. Syosset Hospital — 59 N.Y.2d 842

Majority

p. 842

John Kennedy, Appellant, v Syosset Hospital et al., Respondents, et al., Defendant.

Argued May 4, 1983;

decided June 9, 1983

p. 843

APPEARANCES OF COUNSEL

Herman Schmertz for appellant.

Patricia D’Alvia and Andrea M. Alonso for Syosset Hospital, respondent.

Norman Bard, Sandra Krevitsky, George Nicholson and Anthony L. Schiavetti for Nicholas Poloukhine, respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

At the trial the plaintiff proceeded on the theory that negligent care on the part of the defendant hospital, and not a surgical error by the treating physician caused the plaintiff’s injury. Indeed, plaintiff took no exception to, and seemed to encourage, the dismissal of the action against the doctor for failure of proof.

The liability issue submitted to the jury, without objection, was confined to plaintiff’s claim that the negligent administering of an injection by an employee of the hospital caused his injury. The Appellate Division was unanimous in affirming the jury verdict that there was no such liability and that determination will not be disturbed on this appeal.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order affirmed, with costs, in a memorandum.