Jean Spagnole, appellant, v. Staten Island University Hospital, et al., respondents. (2010)

Argued-September 27, 2010

DECISION & ORDER

In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Giacobbe, J.), entered May 18, 2009, which, upon a jury verdict, is in favor of the defendants and against her dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

Jury interrogatories must be based on claims supported by the evidence (see Marzuillo v. Isom, 277 A.D.2d 362, 363).   Here, the Supreme Court properly declined to submit to the jury the proposed interrogatory regarding whether the defendants departed from the standard of care and proximately caused the plaintiff's injuries by failing to order a CT scan on November 20, 2002, as that theory of recovery was not based on evidence adduced at trial (see Murray v. Maniatis, 21 AD3d 1012, 1013;  cf.  Beizer v. Schwartz, 15 AD3d 433, 434).

The plaintiff's remaining contention is raised for the first time on appeal and is not properly before this Court.

SANTUCCI, J.P., BALKIN, LEVENTHAL and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court