OSINSKI v. TAEFI (2004)

 Plaintiffs commenced this medical malpractice action seeking damages for injuries suffered by their son, allegedly as a result of his premature birth.   Defendant was the obstetrician-gynecologist who treated Annette Osinski (plaintiff).   Plaintiffs alleged that defendant was negligent in his treatment of plaintiff during an appointment approximately one day before the premature birth.   Prior to trial, Supreme Court dismissed a cause of action asserted by plaintiff, individually, thereby rendering legally irrelevant references to her postpartum care and treatment.  “Determinations of relevancy rest largely in the discretion of the trial court” (Price v. New York City Hous. Auth., 92 N.Y.2d 553, 560, 684 N.Y.S.2d 143, 706 N.E.2d 1167), and we conclude that the court did not abuse its discretion in ordering redaction of references to plaintiff's postpartum care and treatment and in prohibiting plaintiffs' attorney from commenting in his summation on notes in the hospital record concerning plaintiff's condition after the delivery, even though the record was in evidence and those entries had not been redacted.

 We further conclude that the court properly denied plaintiffs' request for a jury instruction on spoliation of evidence.   Plaintiffs failed to establish that the original documents were destroyed (see Lillis v. D'Souza, 174 A.D.2d 976, 977, 572 N.Y.S.2d 136, lv. denied 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057), much less that they were destroyed with a fraudulent intent (cf. Lipschitz v. Stein, 10 A.D.3d 634, 638, 781 N.Y.S.2d 773).   Plaintiffs further failed to establish there was “no reasonable explanation for failing to produce [the evidence]” (Wilkie v. New York City Health & Hosps. Corp., 274 A.D.2d 474, 474, 711 N.Y.S.2d 29, lv. denied 96 N.Y.2d 705, 723 N.Y.S.2d 132, 746 N.E.2d 187;  see Cidieufort v. New York City Health & Hosps. Corp., 250 A.D.2d 720, 721, 673 N.Y.S.2d 188).   Defendant, however, testified that he transferred the original records to Children's Hospital when it purchased his practice in 1996.

 Finally, we conclude that the court properly denied plaintiffs' motion to set aside the verdict as against the weight of the evidence.   It is well settled that a motion to set aside a jury verdict as against the weight of the evidence should not be granted “unless the preponderance of the evidence in favor of the moving party is so great that the verdict could not have been reached upon any fair interpretation of the evidence” (Dannick v. County of Onondaga, 191 A.D.2d 963, 964, 595 N.Y.S.2d 575;  see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Ruddock v. Happell, 307 A.D.2d 719, 720, 763 N.Y.S.2d 868;  Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, 976, 499 N.Y.S.2d 525, lv. denied 68 N.Y.2d 608, 506 N.Y.S.2d 1033, 498 N.E.2d 435).  “ ‘In reviewing the record to ascertain whether the verdict was a fair reflection of the evidence, great deference is accorded to the fact-finding function of the jury, as it is in the foremost position to assess witness credibility’ ” (Kalpakis v. County of Nassau, 289 A.D.2d 453, 454, 735 N.Y.S.2d 427, quoting Teneriello v. Travelers Cos., 264 A.D.2d 772, 772-773, 695 N.Y.S.2d 372, lv. denied 94 N.Y.2d 758, 705 N.Y.S.2d 5, 726 N.E.2d 482;  see Tanner v. Tundo, 309 A.D.2d 1244, 765 N.Y.S.2d 544).   Here, the conflicting testimony of defendant and plaintiffs and the conflicting expert opinions raised issues of credibility for the jury to determine (see Tanner, 309 A.D.2d 1244, 765 N.Y.S.2d 544;   Mascia v. Olivia, 299 A.D.2d 883, 884, 750 N.Y.S.2d 688).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: