Albury v. Bronx Cross-County Medical Group Clinton Center

209 A.D.2d 293, 618 N.Y.S.2d 723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 1994
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County (David Levy, J.), entered July 23, 1993, in favor of plaintiffs, after a jury trial, which awarded plaintiff Nicholas Albury $300,000 and plaintiff Gladys Albury $100,000, plus interest, costs and disbursement for a total of $411,150, unanimously affirmed, with costs.

In this action for malpractice, plaintiff proceeded on two theories of negligence both of which were supported by sufficient evidence. Upon review of the record, we find that the verdict is not against the weight of the evidence (Cohen v Hallmark Cards, 45 NY2d 493, 498-499). There is no basis, therefore, for reversal of the general verdict rendered by the jury on the grounds that it should have been a special verdict (cf., Davis v Caldwell, 54 NY2d 176). The damages awarded fall within the range of damages awarded in other cases for such injuries and do not deviate materially from what would be considered reasonable compensation under the circumstances. With respect to plaintiff’s counsel’s summation, the court gave a curative instruction concerning any misunderstanding as to references to defense counsel’s tactics, as requested by defendant, and the remaining remarks complained of were within the bounds of proper commentary on the evidence and argument. Concur—Asch, J. P., Rubin, Nardelli and Tom, JJ.