Lu v. Spinelli

44 A.D.3d 546, 844 N.Y.S.2d 228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2007
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered April 5, 2006, upon a jury verdict in defendants’ favor, unanimously affirmed, without costs.

The jury’s verdict in favor of defendants in this medical malpractice action was based upon a fair interpretation of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]). Issues of credibility are for the jury and its resolution of such issues is entitled to deference (see Robinson v City of New York, 300 AD2d 384 [2002]). The jury reasonably rejected plaintiffs claim that her informed consent for the eyelid surgery was not properly obtained because defendants had promised to keep her awake during the surgery so that she could give permission to allow a graft to lengthen her eyelid if one was needed (see Cioffi v Lenox Hill Hosp., 287 AD2d 335 [2001], lv denied 97 NY2d 612 [2002]). The evidence established that defendants discussed the procedure with plaintiff and made no such promises, and contrary to plaintiffs position, she could not have provided informed consent during the surgery while under anesthesia. The missing informed consent form executed by plaintiff does not warrant a different conclusion. We find that the trial court did not err in permitting defense counsel to cross-examine plaintiff regarding whether she had filed a prior unrelated lawsuit but should not have allowed extrinsic evidence relating to the matter. However, we conclude such error does not warrant a new trial (cf. Badr v Hogan, 75 NY2d 629, 636-637 [1990]). Concur—Mazzarelli, J.P., Marlow, Sullivan, Gonzalez and McGuire, JJ.