ACEVEDO RODRIGUEZ v. Dr. James Rorie, et al., Defendants. (1998)

Judgment, Supreme Court, New York County (Karla Moskowitz, J.), entered May 2, 1997, which, after a jury trial, awarded plaintiff the principal sum of $8,598,054, unanimously modified, on the facts, to delete the hand-written penultimate paragraph assessing interest disparately against defendant Rothbard, and otherwise affirmed, without costs.

 In this medical malpractice action, the conclusion of plaintiff's expert witnesses as to causation was, contrary to defendants' contentions, adequately founded in the evidence, and sufficient to establish the requisite causal nexus between defendants' malpractice and the infant plaintiff's harm (see, Stringile v. Rothman, 142 A.D.2d 637, 639, 530 N.Y.S.2d 838;  cf., Rampe v. Community Gen. Hosp., 241 A.D.2d 817, 660 N.Y.S.2d 206, lv. denied, 91 N.Y.2d 806, 669 N.Y.S.2d 1, 691 N.E.2d 1027).   Nor is there merit to defendant's claim that the trial court's missing document charge was improper, since there was evidence that the missing fetal monitor strips existed and had been in defendants' control, and defendants advanced no adequate explanation for their nonproduction (see, Crespo v. New York City Hous. Auth., 222 A.D.2d 300, 301, 635 N.Y.S.2d 593).   Nor did the trial court err in excluding proffered habit evidence to prove the absence of malpractice by one of the defendant physicians (see, Glusaskas v. Hutchinson, 148 A.D.2d 203, 206, 544 N.Y.S.2d 323).   Finally, the record supports the amount of damages awarded, the jury verdict having been appropriately reduced by the trial court pursuant to stipulation.

We modify, on plaintiff's consent, only to eliminate a paragraph added to the proposed judgment imposing a higher interest rate on the individual defendant.

We have considered defendants-appellants' remaining arguments and find them to be without merit.

MEMORANDUM DECISION.