Burger v. Frisch

39 A.D.2d 542, 332 N.Y.S.2d 376, 1972 N.Y. App. Div. LEXIS 5032

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1972
• Status: Published

Opinion

In an action to recover damages for medical malpractice and breach of warranty, plaintiff appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Kings County, entered July 14, 1970, as is against her and in favor of defendants, upon (1) a jury verdict in favor of defendants Ellman, Pickard and Adelphi Hospital and (2) the trial court’s decision granting a motion by defendants who are executors of the estate of Theodore V. Barnett and by defendant the Central Brooklyn Medical Group to (a) set aside a jury verdict against them and for plaintiff of $14,000 on the first cause of action (for conscious pain and suffering of plaintiff's intestate) and $136,000 on the second cause of action (for wrongful death of plaintiff’s intestate) and (b) dismiss the complaint as against said defendants. Judgment affirmed insofar as appealed from, without costs. If we were not affirming the judgment to the extent that it is in favor of the executors of the estate of Theodore V. Barnett and in favor of the Central Brooklyn Medical Group, upon the trial court’s dismissal of the complaint as against them, we would nevertheless sustain the decision setting aside the verdict in favor of plaintiff against these two defendants as contrary to the weight of the evidence. Munder, Acting P. J., Martuseello, Shapiro, Brennan and Benjamin, JJ., concur.