Chodos v. Flanzer

109 A.D.2d 771, 486 N.Y.S.2d 86, 1985 N.Y. App. Div. LEXIS 47259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 11, 1985
• Status: Published

Opinion

— In an action to recover damages for dental malpractice, plaintiffs appeal from a judgment of the Supreme Court, Kings County (Clemente, J.), dated March 21, 1983, which, upon a jury verdict, found in favor of defendant.

Judgment affirmed, with costs.

After extensive expert testimony concerning the procedures used by defendant in treating plaintiff wife’s periodontal disease, the jury found that defendant was not negligent. “The weight to be afforded the conflicting testimony of experts is a matter peculiarly within the province of the jury” (Sternemann v Langs, 93 AD2d 819). On this record, it cannot be said that the jury verdict is against the weight of the evidence (Cohen v Hallmark Cards, 45 NY2d 493; O'Boyle v Avis Rent-A-Car Sys., 78 AD2d 431; Palmeri v Spies, 69 AD2d 968; Haftel v Kestler, 53 AD2d 572).

Plaintiffs’ claim that the court should not have charged the jury on the issue of contributory negligence in mitigation of damages is without merit since there was a reasonable view of the evidence to support such a charge (Nallan v Helmsley-Spear, Inc., 50 NY2d 507). In any event, any error in the court’s contributory negligence charge would have been harmless. The verdict makes it clear that the issue of contributory negligence was never reached as the jury determined that plaintiffs failed to prove that defendant was negligent (Young v Hackett, 49 AD2d 1013; Benoit v Travaglini, 43 AD2d 587, affd 35 NY2d 799). O’Connor, J. P., Rubin, Lawrence and Eiber, JJ., concur.