Wilson v. Kane

Appellate Division of the Supreme Court of New York

Wilson v. Kane

229 A.D.2d 434, 644 N.Y.S.2d 908, 1996 N.Y. App. Div. LEXIS 7674

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

DecidedJuly 8, 1996

StatusPublished

This text of 229 A.D.2d 434 (Wilson v. Kane) 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

Wilson v. Kane, 229 A.D.2d 434, 644 N.Y.S.2d 908, 1996 N.Y. App. Div. LEXIS 7674 (N.Y. Ct. App. 1996).

Pincite

Opinion

—In an action to recover damages for dental malpractice, etc., the defendants appeal from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered June 21, 1995, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $60,000.

Ordered that the judgment is reversed, on the law, with costs, and a new trial is granted on the issue of damages only. The findings of fact as to liability are affirmed.

We agree with the defendants that "[o]n this record [they were] entitled to have the jury consider, in mitigation of damages, whether there was any negligence on the part of the plaintiff * * * subsequent to the alleged malpractice” (Dunn v Catholic Med. Ctr., 55 AD2d 597, citing Carpenter v Blake, 75 NY 12, 24; see also, Ferrara v Leventhal, 56 AD2d 490). This error deprived the defendants of a fair trial with respect to the jury’s assessment of damages. Because the jury’s verdict as to liability was not against the weight of the evidence, the new [435]*435trial should, be limited to the issue of the amount of damages suffered by the plaintiff (see, Dunn v Catholic Med. Ctr., supra). Bracken, J. P., Thompson, Krausman and Florio, JJ., concur.

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—In an action to recover damages for dental malpractice, etc., the defendants appeal from a judgment of the Supreme Court, Suffolk County (Lama, J.), entered June 21, 1995, which, upon a jury verdict, is in favor of the plaintiffs and against them in the principal sum of $60,000.

Ordered that the judgment is reversed, on the law, with costs, and a new trial is granted on the issue of damages only. The findings of fact as to liability are affirmed.

We agree with the defendants that "[o]n this record [they were] entitled to have the jury consider, in mitigation of damages, whether there was any negligence on the part of the plaintiff * * * subsequent to the alleged malpractice” (Dunn v Catholic Med. Ctr., 55 AD2d 597, citing Carpenter v Blake, 75 NY 12, 24; see also, Ferrara v Leventhal, 56 AD2d 490). This error deprived the defendants of a fair trial with respect to the jury’s assessment of damages. Because the jury’s verdict as to liability was not against the weight of the evidence, the new [435]*435trial should, be limited to the issue of the amount of damages suffered by the plaintiff (see, Dunn v Catholic Med. Ctr., supra). Bracken, J. P., Thompson, Krausman and Florio, JJ., concur.

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Bluebook (online)

229 A.D.2d 434, 644 N.Y.S.2d 908, 1996 N.Y. App. Div. LEXIS 7674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-kane-nyappdiv-1996.

Opinion

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