Sauer v. Aguero

270 A.D.2d 327, 705 N.Y.S.2d 235, 2000 N.Y. App. Div. LEXIS 2699

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant Jose A. Agüero appeals from an order of the Supreme Court, Nassau County (Carter, J.), dated December 3, 1998, which granted the plaintiffs’ motion to set aside a jury verdict in his favor finding that his conduct was not a deviation from accepted medical practice, and for judgment as a matter of law on that issue, and ordered a new trial on the issue of whether the deviation was a substantial factor in causing the infant plaintiffs injuries and, if necessary, for an assessment of damages.

Ordered that the order is affirmed, with costs.

The record is replete with evidence which preponderates heavily in favor of the plaintiffs and establishes that the defendant Jose A. Agüero deviated from accepted medical practice in his treatment of the infant plaintiff. Thus, the court properly set aside the jury verdict in favor of Agüero as against the weight of the evidence (see, Keegan v Prout, 215 AD2d 629, 630; Plant v Shalit, 158 AD2d 676, 677; Nicastro v Park, 113 AD2d 129, 134). The plaintiffs were also entitled to judgment as a matter of law on this issue because there was “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499; see also, Nicastro v Park, supra, at 132; Stachnik Marina v Commercial Union Ins. Co., 263 AD2d 479). Santucci, J. P., Joy, S. Miller and H. Miller, JJ., concur.