Fagiola v. Jonassen

173 A.D.2d 590, 570 N.Y.S.2d 173, 1991 N.Y. App. Div. LEXIS 8221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1991
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Kutner, J.), dated March 14, 1989, which, upon a jury verdict, is in favor of the defendants dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

After the jurors had begun their deliberations, several notes were sent by the foreperson of the jury to the trial court. The plaintiffs’ attorney did not request that the jurors be instructed to suspend their deliberations until after a response to these notes had been formulated, nor did the plaintiffs’ attorney object when, prior to the court’s having responded to these notes, the jury announced that it was prepared to return a verdict. The plaintiffs’ argument that the trial court erred in proceeding to accept the jury verdict is, under these circumstances, beyond the scope of appellate review as a question of law. If we were to reach the issue as a matter of discretion, we would conclude that the court in fact committed no error in accepting the jury’s verdict, in light of the fact that the foreperson had informed the court that the jury no longer had any need of the assistance which it had requested in the notes (see, Gonzalez v Colella, 55 AD2d 534; see also, Silverstein v Manhattan & Bronx Surface Tr. Operating Auth., 159 AD2d 452).

We have examined the plaintiffs’ remaining contention and find it to be without merit (see generally, Nicastro v Park, 113 AD2d 129). Mangano, P. J., Bracken, Kunzeman and Kooper, JJ., concur.