Rose v. Hotel New Yorker

Appellate Division of the Supreme Court of New York

Rose v. Hotel New Yorker

1 A.D.2d 769, 148 N.Y.S.2d 204, 1956 N.Y. App. Div. LEXIS 6458

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

DecidedJanuary 31, 1956

StatusPublished

This text of 1 A.D.2d 769 (Rose v. Hotel New Yorker) 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

Rose v. Hotel New Yorker, 1 A.D.2d 769, 148 N.Y.S.2d 204, 1956 N.Y. App. Div. LEXIS 6458 (N.Y. Ct. App. 1956).

Pincite

Opinion

Judgment unanimously modified on the law and the facts to direct that judgment be entered dismissing the complaint against the defendants Dapolonia and Emery, with costs, and otherwise affirmed. The evidence is insufficient to support the finding that Doctors Dapolonia and Emery manipulated plaintiff patient’s arm so violently as to cause the displacement [770]*770of bone fragments. The patient’s medical expert, who had later treated her, testified that, in the facts of the case, a violent manipulation of the arm was impossible and could not cause the displacement. We are satisfied, accepting the testimony of Dr. Flanagan, plaintiff’s witness, that the displacement occurred as a consequence of the initial trauma, as testified, and not the acts of defendant physicians. Further, it was insufficiently established that Doctors Dapolonia and Emery, in informing the patient that her arm was sprained rather than fractured, negligently misdiagnosed the nature of the injuries. In view of the fact that, on the evidence, there was no malpractice, it is unnecessary to consider the question of liability, based on the doctrine of respondeat superior, of defendant Palmer. Settle order on notice. Concur — Breitel, J. P., Bastow, Botein, Rabin and Bergan, JJ.

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Judgment unanimously modified on the law and the facts to direct that judgment be entered dismissing the complaint against the defendants Dapolonia and Emery, with costs, and otherwise affirmed. The evidence is insufficient to support the finding that Doctors Dapolonia and Emery manipulated plaintiff patient’s arm so violently as to cause the displacement [770]*770of bone fragments. The patient’s medical expert, who had later treated her, testified that, in the facts of the case, a violent manipulation of the arm was impossible and could not cause the displacement. We are satisfied, accepting the testimony of Dr. Flanagan, plaintiff’s witness, that the displacement occurred as a consequence of the initial trauma, as testified, and not the acts of defendant physicians. Further, it was insufficiently established that Doctors Dapolonia and Emery, in informing the patient that her arm was sprained rather than fractured, negligently misdiagnosed the nature of the injuries. In view of the fact that, on the evidence, there was no malpractice, it is unnecessary to consider the question of liability, based on the doctrine of respondeat superior, of defendant Palmer. Settle order on notice. Concur — Breitel, J. P., Bastow, Botein, Rabin and Bergan, JJ.

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Bluebook (online)

1 A.D.2d 769, 148 N.Y.S.2d 204, 1956 N.Y. App. Div. LEXIS 6458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-hotel-new-yorker-nyappdiv-1956.