Bota v. Kaminsky

Appellate Division of the Supreme Court of New York

Bota v. Kaminsky

299 A.D.2d 259, 749 N.Y.S.2d 714, 2002 N.Y. App. Div. LEXIS 11250

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

DecidedNovember 21, 2002

StatusPublished

Cited by3 cases

This text of 299 A.D.2d 259 (Bota v. Kaminsky) 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

Bota v. Kaminsky, 299 A.D.2d 259, 749 N.Y.S.2d 714, 2002 N.Y. App. Div. LEXIS 11250 (N.Y. Ct. App. 2002).

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Opinion

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 20, 2001, which denied plaintiffs motion to set aside the verdict as against the weight of the evidence, unanimously affirmed, without costs.

The court properly declined to set aside the verdict in favor of defendant. It was for the jury to resolve the conflict in the parties’ testimony as to whether or not an adequate warning was given of the reasonably foreseeable risks involved in the tooth extraction at issue, and to determine whether the particular injury suffered was encompassed in the warning actually given or was the type of risk requiring a more specific warning (see Marchione v State of New York, 194 AD2d 851, 854; Public Health Law § 2805-d). Furthermore, the jury could have reasonably concluded that defendant advised plaintiff of all viable alternatives to the procedure. Contrary to plaintiffs argument, defendant’s testimony did not contain any concessions of liability, but instead raised issues of fact for the jury. Concur— Nardelli, J.P., Mazzarelli, Sullivan, Ellerin and Marlow, JJ.

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Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 20, 2001, which denied plaintiffs motion to set aside the verdict as against the weight of the evidence, unanimously affirmed, without costs.

The court properly declined to set aside the verdict in favor of defendant. It was for the jury to resolve the conflict in the parties’ testimony as to whether or not an adequate warning was given of the reasonably foreseeable risks involved in the tooth extraction at issue, and to determine whether the particular injury suffered was encompassed in the warning actually given or was the type of risk requiring a more specific warning (see Marchione v State of New York, 194 AD2d 851, 854; Public Health Law § 2805-d). Furthermore, the jury could have reasonably concluded that defendant advised plaintiff of all viable alternatives to the procedure. Contrary to plaintiffs argument, defendant’s testimony did not contain any concessions of liability, but instead raised issues of fact for the jury. Concur— Nardelli, J.P., Mazzarelli, Sullivan, Ellerin and Marlow, JJ.

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Bluebook (online)

299 A.D.2d 259, 749 N.Y.S.2d 714, 2002 N.Y. App. Div. LEXIS 11250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bota-v-kaminsky-nyappdiv-2002.

Opinion

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