Bellis v. Herman

Appellate Division of the Supreme Court of New York

Bellis v. Herman

16 A.D.2d 662, 226 N.Y.S.2d 948, 1962 N.Y. App. Div. LEXIS 10459

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 9, 1962

StatusPublished

This text of 16 A.D.2d 662 (Bellis v. Herman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bellis v. Herman, 16 A.D.2d 662, 226 N.Y.S.2d 948, 1962 N.Y. App. Div. LEXIS 10459 (N.Y. Ct. App. 1962).

Pincite

Opinion

In a malpractice action to recover damages for injuries suffered by plaintiff’s decedent, the defendant appeals from a judgment of the Supreme Court, Kings County, entered May 10, 1961 after trial upon the jury’s verdict of $31,200 in favor of such decedent. The decedent died during the pendency of this appeal; his administrator has been substituted as plaintiff. Judgment reversed on the law and the facts and new trial granted, with costs to abide the event. In 1952, defendant performed the surgical operation of removing prostatie tissue from the person of the plaintiff’s decedent. The principal issue presented in this action was whether in the course of such 1952 operation defendant was guilty of malpractice by reason of the damage caused to the external sphincter muscle, as a result of which urinary incontinence ensued. In our opinion, the jury’s affirmative finding on this issue, implicit in their verdict' for plaintiff, is against the weight of the credible evidence. We also believe that as a matter of law the trial court erred in admitting testimony to the effect that excision of the verumontanum during a prior operation performed in 1950 by defendant upon decedent was contrary to accepted practice. In summation, this error was aggravated by plaintiff’s attorney’s reference to the Statute of Limitations as barring recovery for malpractice, if any, committed during the course of such 1950 surgery. Beldock, P. J., Ughetta, Kleinfeld, Brennan and Rabin, JJ., concur.

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In a malpractice action to recover damages for injuries suffered by plaintiff’s decedent, the defendant appeals from a judgment of the Supreme Court, Kings County, entered May 10, 1961 after trial upon the jury’s verdict of $31,200 in favor of such decedent. The decedent died during the pendency of this appeal; his administrator has been substituted as plaintiff. Judgment reversed on the law and the facts and new trial granted, with costs to abide the event. In 1952, defendant performed the surgical operation of removing prostatie tissue from the person of the plaintiff’s decedent. The principal issue presented in this action was whether in the course of such 1952 operation defendant was guilty of malpractice by reason of the damage caused to the external sphincter muscle, as a result of which urinary incontinence ensued. In our opinion, the jury’s affirmative finding on this issue, implicit in their verdict' for plaintiff, is against the weight of the credible evidence. We also believe that as a matter of law the trial court erred in admitting testimony to the effect that excision of the verumontanum during a prior operation performed in 1950 by defendant upon decedent was contrary to accepted practice. In summation, this error was aggravated by plaintiff’s attorney’s reference to the Statute of Limitations as barring recovery for malpractice, if any, committed during the course of such 1950 surgery. Beldock, P. J., Ughetta, Kleinfeld, Brennan and Rabin, JJ., concur.

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Bluebook (online)

16 A.D.2d 662, 226 N.Y.S.2d 948, 1962 N.Y. App. Div. LEXIS 10459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bellis-v-herman-nyappdiv-1962.