Cegielski v. St. Francis Home

222 A.D.2d 1010, 636 N.Y.S.2d 677, 1995 N.Y. App. Div. LEXIS 14046

Opinion

—Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion to dismiss at the close of proof. Contrary to defendant’s contention, expert testimony was not required to establish a prima facie case because this case involves ordinary negligence, not medical malpractice (see, Kerker v Hurwitz, 163 AD2d 859, remittitur amended 166 AD2d 931; see generally, White v Sheehan Mem. Hosp., 119 AD2d 989). The court also properly refused to charge the affirmative defense of culpable conduct; there was no evidence that plaintiff’s decedent was negligent (see, Willis v Young Men’s Christian Assn., 28 NY2d 375, 377-378). (Appeal from Judgment of Supreme Court, Erie County, Notaro, J. — Negligence.) Present — Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.