Brown v. City of New York

393 N.E.2d 486, 47 N.Y.2d 927, 419 N.Y.S.2d 491, 1979 N.Y. LEXIS 2179

Opinion

OPINION OF THE COURT

Memorandum.

The judgment appealed from should be affirmed. Viewing the evidence in the record in the light most favorable to the plaintiff (see Parvi v City of Kingston, 41 NY2d 553), we agree with the Appellate Division that she made out a prima facie case. Without more, the record reveals that the testimony of plaintiffs medical expert provided a basis for a finding that defendant’s doctors deviated from accepted medical practice when they failed to further explore the nature of the orange pills plaintiff disclosed she had taken so that they might eliminate the possibility that her symptoms were drug-induced rather than systemic, and that therefore surgery was contraindicated.

As to the cross appeal, the plaintiff having stipulated to the "reduction” of damages, her appeal does not lie and, accordingly, is dismissed (Dudley v Perkins, 235 NY 448).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs to plaintiff, and plaintiffs cross appeal dismissed, without costs, in a memorandum.