CARNEVALE, CAROL A. v. ELIZABETH WENDE BREAST CARE, LLC

Appellate Division of the Supreme Court of New York

CARNEVALE, CAROL A. v. ELIZABETH WENDE BREAST CARE, LLC

106 A.D.3d 1516, 964 N.Y.S.2d 444

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

DecidedMay 3, 2013

DocketCA 12-01638

StatusPublished

Cited by1 cases

This text of 106 A.D.3d 1516 (CARNEVALE, CAROL A. v. ELIZABETH WENDE BREAST CARE, LLC) 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

CARNEVALE, CAROL A. v. ELIZABETH WENDE BREAST CARE, LLC, 106 A.D.3d 1516, 964 N.Y.S.2d 444 (N.Y. Ct. App. 2013).

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Opinion

Appeal from a judgment of the Supreme Court, Wayne County (John B. Nesbitt, A.J.), entered December 22, 2011. The judgment awarded costs and disbursements to defendants following a jury verdict in favor of defendants.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for defendants’ alleged medical malpractice in failing to make a timely diagnosis of her breast cancer. Following a trial the jury found that defendants were not negligent in their care and treatment of plaintiff, and Supreme Court denied plaintiffs posttrial motion to set aside the verdict. We note at the outset that, although plaintiff appealed from the order denying her posttrial motion to set aside the verdict rather than from the judgment in which that order was subsumed, “we exercise our discretion to treat plaintiffi’s] notice of appeal as valid and deem the appeal as taken from the judgment” (Campopiano v Volcko [appeal No. 2], 61 AD3d 1343, 1344 [2009]). Plaintiff contends that a juror affidavit establishes that certain jurors were biased against her and thus that she was denied a fair trial. We reject that contention. Here, “[i]n the absence of exceptional circumstances” (Lopez v Kenmore-Tonawanda Sch. Dist., 275 AD2d 894, 897 [2000]), “ ‘the use of [juror] affidavits for the purpose of exploring the deliberative process of the jury and impeaching its verdict is patently improper’ ” (Best v Swan *1517 Group L.P., 81 AD3d 1344, 1344 [2011]; see Pawlaczyk v Jones, 26 AD3d 822, 823 [2006], lv denied 7 NY3d 701 [2006]).

Contrary to plaintiffs further contention, the court did not commit reversible error by allowing plaintiffs treating physician to testify as to her opinion concerning the merits of plaintiffs action. We conclude that the error did not “affect[ ] the result” of this action and therefore is harmless (Palmer v Wright & Kremers, 62 AD2d 1170, 1170 [1978]; see Cook v Oswego County, 90 AD3d 1674, 1675 [2011]). Present—Smith, J.P, Peradotto, Lindley, Valentino and Whalen, JJ.

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Appeal from a judgment of the Supreme Court, Wayne County (John B. Nesbitt, A.J.), entered December 22, 2011. The judgment awarded costs and disbursements to defendants following a jury verdict in favor of defendants.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for defendants’ alleged medical malpractice in failing to make a timely diagnosis of her breast cancer. Following a trial the jury found that defendants were not negligent in their care and treatment of plaintiff, and Supreme Court denied plaintiffs posttrial motion to set aside the verdict. We note at the outset that, although plaintiff appealed from the order denying her posttrial motion to set aside the verdict rather than from the judgment in which that order was subsumed, “we exercise our discretion to treat plaintiffi’s] notice of appeal as valid and deem the appeal as taken from the judgment” (Campopiano v Volcko [appeal No. 2], 61 AD3d 1343, 1344 [2009]). Plaintiff contends that a juror affidavit establishes that certain jurors were biased against her and thus that she was denied a fair trial. We reject that contention. Here, “[i]n the absence of exceptional circumstances” (Lopez v Kenmore-Tonawanda Sch. Dist., 275 AD2d 894, 897 [2000]), “ ‘the use of [juror] affidavits for the purpose of exploring the deliberative process of the jury and impeaching its verdict is patently improper’ ” (Best v Swan *1517 Group L.P., 81 AD3d 1344, 1344 [2011]; see Pawlaczyk v Jones, 26 AD3d 822, 823 [2006], lv denied 7 NY3d 701 [2006]).

Contrary to plaintiffs further contention, the court did not commit reversible error by allowing plaintiffs treating physician to testify as to her opinion concerning the merits of plaintiffs action. We conclude that the error did not “affect[ ] the result” of this action and therefore is harmless (Palmer v Wright & Kremers, 62 AD2d 1170, 1170 [1978]; see Cook v Oswego County, 90 AD3d 1674, 1675 [2011]). Present—Smith, J.P, Peradotto, Lindley, Valentino and Whalen, JJ.

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Bluebook (online)

106 A.D.3d 1516, 964 N.Y.S.2d 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carnevale-carol-a-v-elizabeth-wende-breast-care-llc-nyappdiv-2013.

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