Nouri v. Reich

198 A.D.2d 116, 603 N.Y.S.2d 827, 1993 N.Y. App. Div. LEXIS 10637

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Burton Sherman, J.), entered July 24, 1992, which after a jury verdict in favor of defendants in this medical malpractice case, dismissed the complaint, unanimously affirmed, without costs.

The jury’s verdict was clearly based upon a fair interpretation of the evidence and should thus not be set aside. (Delgado v Board of Educ., 65 AD2d 547, affd 48 NY2d 643.) Indeed, there was conflicting evidence regarding whether Dr. Reich prescribed medication for plaintiff on August 4, 1987 and the jury was free to believe defendant’s testimony and discredit the other witnesses’ testimony and the questionable physical evidence (see, e.g., Sheps v Hall & Co., 112 AD2d 281, 283).

We also note that plaintiff is barred from raising the issue of whether the medical malpractice statute of limitations was tolled in this case based upon an alleged June 1987 medical treatment by defendant doctor, since plaintiff stipulated at trial to limit the issue to whether defendant prescribed medication for plaintiff on August 4, 1987 (see, Deitsch Textiles v New York Prop. Ins. Underwriting Assn., 62 NY2d 999, 1002). Concur — Sullivan, J. P., Ross, Kassal and Rubin, JJ.