Barbarito v. Western Queens Community Hospital

271 A.D.2d 627, 707 N.Y.S.2d 348, 2000 N.Y. App. Div. LEXIS 4499

Opinion

—In an action to recover damages for medical malpractice, etc., the defendants Nabil Megally and Panagiotis A. Manolas appeal from a judgment of the Supreme Court, Queens County (Milano, J.), entered February 18, 1999, which, upon a jury verdict on the issue of liability and the parties’ stipulation as to damages, is in favor of the plaintiffs and against the defendant Nabil Megally in the principal sum of $240,000 and against the defendant Panagiotis A. Manolas in the principal sum of $120,000.

Ordered that the judgment is affirmed, with costs.

“A medical malpractice cause of action may be based on allegations that a physician negligently gave advice to his patient as to what course of treatment to pursue” (Bienz v Central Suffolk Hosp., 163 AD2d 269, 270). According due deference to the jury’s determination, which was based upon its opportunity to see and hear the witnesses, as well as to weigh the conflicting testimony of the parties and their respective experts, it cannot be said that the evidence so preponderated in favor of the appellants that the jury could not have reached its conclusion on the issue of liability based upon any fair interpretation of the evidence (see, Arpino v Jovin C. Lombardo, P. C., 215 AD2d 614, 615; Jones v Schockett, 109 AD2d 821, 822). Thus, the jury’s determination was not against the weight of the evidence (see, Simmons v East Nassau Med. Group, 260 AD2d 463; Flowers v Southampton Hosp., 215 AD2d 723; Arpino v Jovin C. Lombardo, P. C., supra, at 615).

The appellants’ remaining contentions are without merit. Goldstein, J. P., Florio, Feuerstein and Schmidt, JJ., concur.