WOODS v. Emergency Medical Service, et al., Defendants-Respondents-Appellants.

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

Marie WOODS, etc., Plaintiff-Appellant-Respondent, v. The CITY OF NEW YORK, et al., Defendants, Emergency Medical Service, et al., Defendants-Respondents-Appellants.

Decided: May 23, 2000

RUBIN, J.P., ANDRIAS, SAXE, BUCKLEY and FRIEDMAN, JJ. Steven L. Hess, for Plaintiff-Appellant-Respondent. Ellen B. Fishman, for Defendants-Respondents-Appellants.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered April 2, 1999, which, insofar as appealed from, granted a motion to set aside the verdict to the extent of directing a new trial unless plaintiff stipulated to a reduction of damages from $504,000 to $300,000, unanimously affirmed, without costs.

The jury found that conduct by Emergency Medical Service personnel in providing care to plaintiff's decedent, who was having an asthma attack, directly contributed to her death.   Specifically, the jury found that the failure to suction the endotracheal tube placed in her airway together with the delay in contacting medical control for direction and in transporting decedent to the hospital were substantial factors in causing her death.

 Based upon the facts, Supreme Court was correct in not charging comparative negligence.   Defendants' assertion that decedent delayed seeking medical treatment is speculative (Monica W. v. Milevoi, 252 A.D.2d 260, 263, 685 N.Y.S.2d 231;  Silvestri v. Smallberg, 224 A.D.2d 172, 637 N.Y.S.2d 115, affd. 88 N.Y.2d 1004, 648 N.Y.S.2d 870, 671 N.E.2d 1267;  see also, Anastasio v. Scheer, 239 A.D.2d 823, 824, 658 N.Y.S.2d 467).   It was therefore appropriate for the trial court to decline to instruct the jury with respect to the affirmative defense (see, Auchampaugh v. Lewis, 173 A.D.2d 1059, 1060, 570 N.Y.S.2d 396).

 As to the cross appeal, we agree that the jury's award of $504,000 “deviates materially from what would be reasonable compensation” (CPLR 5501[c] ) and is excessive to the extent indicated by Supreme Court (see, Merrill v. Albany Med. Center Hosp., 126 A.D.2d 66, 512 N.Y.S.2d 519, appeal dismissed 71 N.Y.2d 990, 529 N.Y.S.2d 272, 524 N.E.2d 873).