Futterman v. Mintzer

111 A.D.2d 219, 489 N.Y.S.2d 253, 1985 N.Y. App. Div. LEXIS 51358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1985
• Status: Published

Opinion

In a medical malpractice action to recover damages for personal injuries etc., plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Underwood, J.), dated June 17, 1983, which denied their motion for a new trial; and (2) a judgment of said court, entered July 1, 1983, which was in favor of defendant.

Appellant Eileen Palopoli died during the pendency of this appeal and Ira H. Futterman was appointed administrator of her estate. Ira H. Futterman is substituted as party appellant for said Eileen Palopoli and the caption is amended accordingly.

Appeal from the order dismissed (see, Matter of Aho, 39 NY2d 241, 248).

Judgment affirmed.

Defendant is awarded one bill of costs.

The record establishes that the jury’s determination to credit defendant’s testimony was based upon legally sufficient evidence and, accordingly, this court will not supplant the jury’s verdict in favor of defendant. Plaintiffs’ allegations of error concerning the conduct of the trial are without merit. Moreover, we note that plaintiffs are not entitled to a new trial based on defendant’s alleged fraudulent alteration of his records. Plaintiffs raised this very same argument at trial. However, they failed to present any evidence of the alleged alteration at that time, nor did they request a continuance to enable them to compile such evidence. Only after the trial did plaintiffs compile some evidence in support of their claim. We have reviewed the tendered evidence and find it unpersuasive. Therefore, the denial of their motion for a new trial was not an improvident exercise of discretion (see, CPLR 4404 [a]; cf. Mully v Drayn, 51 AD2d 660). Mollen, P. J., Titone, Thompson and Lawrence, JJ., concur.