Weintraub v. Zabotinsky

19 A.D.2d 906, 244 N.Y.S.2d 905, 1963 N.Y. App. Div. LEXIS 2828

Opinion

In an action to recover damages for personal injury arising out of alleged dental malpractice, the defendant Zabotinsky appeals from so much of a judgment of the Supreme Court, Kings County, entered December 19, 1961 after trial upon a jury’s verdict, as is in plaintiff’s favor against said defendant. Judgment, insofar as appealed from, reversed on the law; new trial granted as between plaintiff and the defendant Zabotinsky, with costs to abide the event; and action severed as against the defendant Rubin; The court has considered the questions of fact presented and has determined that it would not grant a new trial upon those questions. In his charge the Trial Justice instructed the jury to compensate the plaintiff for his injury “ in such amounts as you jurors feel you, yourselves, would like to be com pensated if the conditions happened to you the same as happened to this man.” Although defendant’s counsel duly excepted to this portion of the charge, the Trial Justice failed to add any appropriate change, explanation or clarification. In our opinion, the instruction as given was erroneous and constitutes reversible error (cf. Stantial v. IJwion By. Co., 52 Mise. 653; Rhodes V. Union By. Co., 52 Mise. 501; Greer v. Union By. Co., 53 Mise. 639, 640). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ.