Bruce v. Hospital for Special Surgery

34 A.D.2d 963, 312 N.Y.S.2d 765, 1970 N.Y. App. Div. LEXIS 4581

Opinion

In an action for alleged malpractice to recover damages for personal injuries, the appeal is from a judgment of the Supreme Court, Queens County, entered March 6, 1969, in plaintiff’s favor against appellant, upon a jury verdict of $50,000. Judgment reversed, on the law and the facts, and new trial granted as to appellant, with costs to abide the event. It is clear that the finding implicit in the jury’s verdict that the operation was performed by defendant Dr. Sbarboro is against the weight of the evidence. There was insufficient evidence presented which would permit a finding by the jury that Dr. Sbarboro did the operation (see Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241). Furthermore, we are of the opinion that it was an improvident exercise of discretion to refuse appellant’s request for a three-week adjournment so that it would have Dr. Sbarboro as a witness. Since his testimony was crucial on the issue of who had performed the operation and since the explanation for his absence was plausible, the requested adjournment should have been granted. Munder, Acting P. J., Martuscello, Latham, Kleinfeld and Benjamin, JJ., concur.