Regelski v. Weber

209 A.D.2d 965, 619 N.Y.S.2d 230

Opinion

—Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: Supreme Court erred in granting plaintiffs’ motion to set aside the jury verdict in favor of defendants. "It is settled law that a motion pursuant to CPLR 4404 (a) should not be granted unless the preponderance of the evidence in favor of the plaintiff is so great that the verdict could not have been reached upon any fair interpretation of the evidence” (Kuncio v Millard Fillmore Hosp., 117 AD2d 975, 976, lv denied 68 NY2d 608; see also, Frasier v McIlduff, 161 AD2d 856, 858). "Moreover, when the issue at trial involves the credibility of conflicting expert testimony, the resolution of that conflict is 'a matter peculiarly within the province of the jury’ ” (Martin v Seaman, 184 AD2d 996, lv denied 80 NY2d 759, quoting Shaw v Binghamton Lodge No. 852, 155 AD2d 805, 806).

There was conflicting expert testimony whether defendants’ treatment of plaintiff Thomas Regelski deviated from accepted medical practice. The jury resolved that issue in defendants’ favor, and we cannot conclude that the verdict could not have been reached "upon any fair interpretation of the evidence” (Kuncio v Millard Fillmore Hosp., supra, at 976). (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J.—Set Aside Verdict.) Present—Balio, J. P., Lawton, Wesley, Doerr and Davis, JJ.