Laura v. Ship

Appellate Division of the Supreme Court of New York

Laura v. Ship

299 A.D.2d 252, 749 N.Y.S.2d 710, 2002 N.Y. App. Div. LEXIS 11264

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 21, 2002

StatusPublished

This text of 299 A.D.2d 252 (Laura v. Ship) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Laura v. Ship, 299 A.D.2d 252, 749 N.Y.S.2d 710, 2002 N.Y. App. Div. LEXIS 11264 (N.Y. Ct. App. 2002).

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Opinion

Judgment, Supreme Court, New York County (Edward Lehner, J.), entered June 7, 2001, after a nonjury trial, dismissing the complaint, unanimously affirmed, without costs.

The trial court’s decision is supported by a fair interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, 495). The trial court, as finder of fact, was entitled to credit the testimony of defendants and their expert, and discredit that of plaintiff and her expert, with respect to whether defendants exercised reasonable judgment and did not depart from accepted medical practices in performing the procedure and monitoring its results (see Matter of Torres, 166 [253]*253AD2d 228, 231, affd 78 NY2d 1085). Similarly, the trial court was free to accept defendant surgeon’s assertion, and reject plaintiffs denial, that she was warned of the risk of the injury that occurred (see Briggins v Chynn, 204 AD2d 158, 158-159). In the latter regard, plaintiffs expert testified only as to the adequacy of the written consent form, and did not offer an opinion as to the adequacy of the verbal warnings (see CPLR 4401-a). Concur — Nardelli, J.P., Mazzarelli, Sullivan, Ellerin and Marlow, JJ.

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Judgment, Supreme Court, New York County (Edward Lehner, J.), entered June 7, 2001, after a nonjury trial, dismissing the complaint, unanimously affirmed, without costs.

The trial court’s decision is supported by a fair interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, 495). The trial court, as finder of fact, was entitled to credit the testimony of defendants and their expert, and discredit that of plaintiff and her expert, with respect to whether defendants exercised reasonable judgment and did not depart from accepted medical practices in performing the procedure and monitoring its results (see Matter of Torres, 166 [253]*253AD2d 228, 231, affd 78 NY2d 1085). Similarly, the trial court was free to accept defendant surgeon’s assertion, and reject plaintiffs denial, that she was warned of the risk of the injury that occurred (see Briggins v Chynn, 204 AD2d 158, 158-159). In the latter regard, plaintiffs expert testified only as to the adequacy of the written consent form, and did not offer an opinion as to the adequacy of the verbal warnings (see CPLR 4401-a). Concur — Nardelli, J.P., Mazzarelli, Sullivan, Ellerin and Marlow, JJ.

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Bluebook (online)

299 A.D.2d 252, 749 N.Y.S.2d 710, 2002 N.Y. App. Div. LEXIS 11264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laura-v-ship-nyappdiv-2002.

Opinion

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