Joyner v. Brookdale University Hospital & Medical Center

303 A.D.2d 720, 756 N.Y.S.2d 873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 2003
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated January 25, 2002, which granted the plaintiffs’ motion pursuant to CPLR 4404 (a) to set aside the verdict as against the weight of the evidence.

Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiffs’ motion to set aside the verdict. A jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon any fair interpretation of the evidence (see Nicastro v Park, 113 AD2d 129 [1985]). The jury verdict, which found that the defendant Brian Gaw did not depart from good and accepted standards of medical practice by an improper use of the Gomco clamp during the neonatal circumcision of the infant plaintiff, did not rest upon a fair interpretation of the credible evidence, and a new trial therefore is warranted pursuant to CPLR 4404 (a). Prudenti, P.J., Ritter, Feuerstein and Adams, JJ., concur.