McGovern v. Attie

Appellate Division of the Supreme Court of New York

McGovern v. Attie

37 A.D.2d 961, 327 N.Y.S.2d 314, 1971 N.Y. App. Div. LEXIS 3102

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

DecidedNovember 1, 1971

StatusPublished

This text of 37 A.D.2d 961 (McGovern v. Attie) 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

McGovern v. Attie, 37 A.D.2d 961, 327 N.Y.S.2d 314, 1971 N.Y. App. Div. LEXIS 3102 (N.Y. Ct. App. 1971).

Pincite

Opinion

In an action to recover damages for personal injuries upon causes for medical malpractice, etc., defendants who are members of the partnership known as Upper Queens Medical Group appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County, entered December 22, 1969, as is in favor of plaintiffs against them, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, without costs; and, as between plaintiffs and the appealing defendants, action severed and new trial granted solely upon the issue of damages. We have considered the questions of fact and we would not grant a new trial upon those questions. We find that the jury’s verdict in favor of the plaintiffs is supported by the proof adduced at the trial (see McGovern v. Attie, 30 A D 2d 559). The trial court, however, failed to clearly instruct the jury, as requested by appellants, that plaintiffs’ recovery should be limited to the damages flowing from the malpractice (the failure to properly treat a rapidly growing tumor) and that appellants were not liable for the inception of the tumor. Hence, a new trial is required upon the issue of damages. Hopkins, Munder, Latham and Shapiro, JJ., concur; Rabin, P. J., not voting.

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In an action to recover damages for personal injuries upon causes for medical malpractice, etc., defendants who are members of the partnership known as Upper Queens Medical Group appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County, entered December 22, 1969, as is in favor of plaintiffs against them, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, without costs; and, as between plaintiffs and the appealing defendants, action severed and new trial granted solely upon the issue of damages. We have considered the questions of fact and we would not grant a new trial upon those questions. We find that the jury’s verdict in favor of the plaintiffs is supported by the proof adduced at the trial (see McGovern v. Attie, 30 A D 2d 559). The trial court, however, failed to clearly instruct the jury, as requested by appellants, that plaintiffs’ recovery should be limited to the damages flowing from the malpractice (the failure to properly treat a rapidly growing tumor) and that appellants were not liable for the inception of the tumor. Hence, a new trial is required upon the issue of damages. Hopkins, Munder, Latham and Shapiro, JJ., concur; Rabin, P. J., not voting.

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Bluebook (online)

37 A.D.2d 961, 327 N.Y.S.2d 314, 1971 N.Y. App. Div. LEXIS 3102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgovern-v-attie-nyappdiv-1971.