CRUZ v. Maternity Infant Care Family Planning Project of Medical & Health Research Association of New York City, Inc., Defendant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Teresa CRUZ, etc., et al., Plaintiffs-Appellants, v. ST. LUKE-ROOSEVELT HOSPITAL CENTER, et al., Defendants, Maternity Infant Care Family Planning Project of Medical & Health Research Association of New York City, Inc., Defendant-Respondent.

Decided: February 08, 2001

SULLIVAN, P.J., ROSENBERGER, MAZZARELLI, LERNER and BUCKLEY, JJ. Scott Sherman, for Plaintiffs-Appellants. Patricia Hart Nessler, for Defendant-Respondent.

Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered December 29, 1999, for defendant-respondent and against plaintiffs, upon a jury verdict in favor of defendant-respondent on the issue of liability, unanimously affirmed, without costs.

 The trial court properly exercised its discretion in bifurcating this medical malpractice/wrongful death action since the questions of liability and damages were discrete (see, CPLR 603 and 4011;  22 NYCRR § 202.42 [a];  Mercado v. City of New York, 25 A.D.2d 75, 265 N.Y.S.2d 834).   In addition, since the court had not yet determined whether the same jury would be deciding both the liability and damages phases of the trial at the time it issued its ruling precluding questioning as to damages during voir dire, there was no violation of 22 NYCRR § 202.42(c).

The court, at the close of plaintiffs' case, properly granted defendant-respondent's motion for a partial directed verdict with respect to whether it had been negligent in prescribing Macrodantin for the decedent and properly precluded all reference to the drug since, even affording plaintiffs every favorable inference properly to be drawn from the facts presented, there was no rational process by which the triers of fact could have found that defendant-respondent had prescribed Macrodantin for the decedent (see, CPLR 4401;  Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346;  Corsack v. Brody, 255 A.D.2d 222, 679 N.Y.S.2d 822).   It follows that the court's refusal to provide the jury with a circumstantial evidence charge with respect to defendant's purported prescription of Macrodantin was also proper.

The record reveals that the court did not unduly interfere with their case presentation or indicate any partiality or bias warranting reversal (see, Bielicki v. T.J. Bentey, Inc., 267 A.D.2d 266, 700 N.Y.S.2d 717;  Givens v. Sinert, 243 A.D.2d 443, 665 N.Y.S.2d 285, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632).

 Although they were plaintiffs in the case, the court properly exercised its discretion in excluding the infant children of the decedent from the courtroom during trial since they did not speak English, were incapable of assisting counsel in the presentation of the case and since their presence might well have impaired the jury's capacity for objective consideration of the facts (see, Caputo v. Joseph J. Sarcona Trucking Co., 204 A.D.2d 507, 611 N.Y.S.2d 655).

We have considered plaintiffs' remaining contentions and find them unavailing.