Belluardo v. State

Appellate Division of the Supreme Court of New York

Belluardo v. State

98 A.D.3d 705, 950 N.Y.S.2d 481

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

DecidedAugust 29, 2012

StatusPublished

This text of 98 A.D.3d 705 (Belluardo v. State) 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

Belluardo v. State, 98 A.D.3d 705, 950 N.Y.S.2d 481 (N.Y. Ct. App. 2012).

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Opinion

In a claim to recover damages for medical malpractice, etc., the claimants appeal from a judgment of the Court of Claims (Lack, J.), dated November 12, 2010, which, upon a decision of the same court dated September 24, 2010, made after a nonjury trial, is in favor of the defendant and against them, dismissing the claim. The notice of appeal from the decision is deemed a notice of appeal from the judgment (see CPLR 5512 [a]).

Ordered that the judgment is affirmed, with costs.

“ ‘In reviewing a determination made after a nonjury trial, this Court’s power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses’ ” (Havel v Goldman, 95 AD3d 1174, 1175 [2012], quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884 [2011]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Crawford v Village of Millbrook, 94 AD3d 1036, 1037-1038 [2012]). To prevail at trial in this claim to recover damages for medical malpractice, the claimants were required to prove their case by a preponderance of the evidence (see Eisenberg v State of New York, 79 AD3d 795, 795 [2010], citing Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]; see Goldberg v Horowitz, 73 AD3d 691, 694 [2010]; Johnson v Jacobowitz, 65 AD3d 610, 613 [2009]; Speciale v Achari, 29 AD3d 674 [2006]). Contrary to the claimants’ contention, the evidence preponderated in favor of the defendant (see Eisenberg v State of New York, 79 AD 3d at 796). Additionally, as the Court of Claims correctly determined, the evidence did not show that the doctrine of res ipsa loquitur [706]*706applied to this case (see Yousefi v Rudeth Realty, LLC, 61 AD3d 677 [2009]; see generally Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]; Antoniato v Long Is. Jewish Med. Ctr., 58 AD3d 652, 654-655 [2009]). Accordingly, the Court of Claims properly dismissed the claim.

The claimants’ remaining contentions are without merit. Dillon, J.P., Dickerson, Hall and Sgroi, JJ., concur.

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In a claim to recover damages for medical malpractice, etc., the claimants appeal from a judgment of the Court of Claims (Lack, J.), dated November 12, 2010, which, upon a decision of the same court dated September 24, 2010, made after a nonjury trial, is in favor of the defendant and against them, dismissing the claim. The notice of appeal from the decision is deemed a notice of appeal from the judgment (see CPLR 5512 [a]).

Ordered that the judgment is affirmed, with costs.

“ ‘In reviewing a determination made after a nonjury trial, this Court’s power is as broad as that of the trial court, and it may render the judgment it finds warranted by the facts, taking into account that in a close case the trial court had the advantage of seeing and hearing the witnesses’ ” (Havel v Goldman, 95 AD3d 1174, 1175 [2012], quoting BRK Props., Inc. v Wagner Ziv Plumbing & Heating Corp., 89 AD3d 883, 884 [2011]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Crawford v Village of Millbrook, 94 AD3d 1036, 1037-1038 [2012]). To prevail at trial in this claim to recover damages for medical malpractice, the claimants were required to prove their case by a preponderance of the evidence (see Eisenberg v State of New York, 79 AD3d 795, 795 [2010], citing Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550 [1998]; see Goldberg v Horowitz, 73 AD3d 691, 694 [2010]; Johnson v Jacobowitz, 65 AD3d 610, 613 [2009]; Speciale v Achari, 29 AD3d 674 [2006]). Contrary to the claimants’ contention, the evidence preponderated in favor of the defendant (see Eisenberg v State of New York, 79 AD 3d at 796). Additionally, as the Court of Claims correctly determined, the evidence did not show that the doctrine of res ipsa loquitur [706]*706applied to this case (see Yousefi v Rudeth Realty, LLC, 61 AD3d 677 [2009]; see generally Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]; Antoniato v Long Is. Jewish Med. Ctr., 58 AD3d 652, 654-655 [2009]). Accordingly, the Court of Claims properly dismissed the claim.

The claimants’ remaining contentions are without merit. Dillon, J.P., Dickerson, Hall and Sgroi, JJ., concur.

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98 A.D.3d 705, 950 N.Y.S.2d 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belluardo-v-state-nyappdiv-2012.

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