Weiss v. Wapniak

283 A.D.2d 573, 724 N.Y.S.2d 655, 2001 N.Y. App. Div. LEXIS 5212

Opinion

—In an action to recover damages for dental malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bárbaro, J.), entered February 29, 2000, as granted that branch of the plaintiffs’ motion which was to set aside, as against the weight of the evidence, so much of the jury verdict as found that the defendant did not depart from accepted dental practice, and granted a new trial.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Upon appellate review, a trial court’s exercise of its discretion to set aside a jury verdict as against the weight of the evidence must be accorded great respect (see, Nicastro v Park, 113 AD2d 129). Here, the Supreme Court properly granted the plaintiffs’ motion insofar as it sought to set aside that portion of the jury’s verdict which found that the defendant did not depart from accepted dental practice, since such a determination could not have been reached upon any fair interpretation of the evidence presented at trial (see, Cohen v Hallmark Cards, 45 NY2d 493; Nordhauser v New York City Health & Hosps. Corp., 176 AD2d 787).

The defendant’s remaining contention is without merit. Santucci, J. P., Luciano, Feuerstein and Adams, JJ., concur.