CERILLI v. KEZIS (2007)

In an action to recover damages for battery, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Brands, J.), entered April 5, 2006, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

This is an action to recover damages for battery allegedly sustained when the defendant Jeffrey S. Kezis performed a biopsy of the plaintiff Albert A. Cerilli's scrotum.   The sole question posed to the jury after a trial was “did Dr. Kezis perform a scalpel biopsy of Mr. Cerilli's scrotum over Mr. Cerilli's express objection?”   The jury was instructed “If you find Dr. Kezis performed the biopsy on Mr. Cerilli over his express objections, then you will find that he committed a battery.”   The plaintiffs' counsel raised no objection to these instructions or to the verdict sheet.   The jury unanimously answered “No” to the question.

Contrary to the plaintiffs' contention, a bifurcated trial with respect to liability was proper under the circumstances since the nature of Mr. Cerilli's injuries allegedly resulting from the biopsy was not relevant to whether he expressly objected to the biopsy procedure (see CPLR 603;  DeGregorio v. Lutheran Med. Ctr., 142 A.D.2d 543, 529 N.Y.S.2d 903).   We further find that the jury's verdict was based upon a fair interpretation of the evidence (see Romero v. Metropolitan Suburban Bus Auth., 25 A.D.3d 683, 684, 811 N.Y.S.2d 692;  Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184).

The plaintiffs' remaining contentions are unpreserved for appellate review or without merit.