CONTORINO v. Arden Hill Hospital, appellant. (1999)

In an action to recover damages for medical malpractice, etc., the defendant Arden Hill Hospital appeals from a judgment of the Supreme Court, Orange County (Bellantoni, J.), entered August 12, 1997, which, upon a jury verdict, and upon the denial of its motion pursuant to CPLR 4404 to set aside the verdict and for a new trial, is in favor of plaintiffs and against it in the principal sum of $5,550,000.

ORDERED that the judgment is affirmed, with costs.

The jury verdict in favor of the plaintiffs is rational (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145), and is based upon a fair interpretation of the evidence (see, Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).

Contrary to the appellant's contentions, the trial court properly denied its motion for a missing witness charge as to both the infant plaintiff's current treating physicians and an expert pathologist whom the plaintiffs originally planned to call as a witness.   The appellant failed to establish that the uncalled witnesses possessed information and knowledge about the malpractice which was more than merely cumulative to the testimony of the witnesses at trial and to the medical records received in evidence (see, Colezetti v. Pircio, 214 A.D.2d 926, 625 N.Y.S.2d 726;  Kane v. Linsky, 156 A.D.2d 333, 548 N.Y.S.2d 286).

We further find that the verdict on the issue of damages did not deviate materially from what would be reasonable compensation for the injuries suffered (see, CPLR 5501[c];  Rivera v. City of New York, 160 A.D.2d 985, 554 N.Y.S.2d 706;  O'Connor v. Graziosi, 131 A.D.2d 553, 516 N.Y.S.2d 276).

The appellant's remaining contentions are either unpreserved for appellate review, without merit, or do not require reversal.

MEMORANDUM BY THE COURT.