Antoine L. Knox, etc., Plaintiff–Appellant, v. George O. Piccorelli, M.D., Defendant, John R. Zambito, M.D., et al., Defendants–Respondents.

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

Antoine L. Knox, etc., Plaintiff–Appellant, v. George O. Piccorelli, M.D., Defendant, John R. Zambito, M.D., et al., Defendants–Respondents.

4880

Decided: April 26, 2011

Mazzarelli, J.P., Renwick, DeGrasse, Freedman, Richter JJ. Alexander J. Wulwick, New York, for appellant.

Mauro Lilling Naparty LLP, Great Neck (Jennifer B. Ettenger of counsel), for John R. Zambito, M.D., respondent.

Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. Barnabas Hospital, respondent.

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Judgment, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered January 4, 2010, after a jury trial in an action alleging medical malpractice, dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to preserve his claim that the verdict was inconsistent (see Arrieta v. Shams Waterproofing, Inc., 76 AD3d 495, 496 [2010];  see Lowenstein v. Normandy Group, LLC, 51 AD3d 517, 518 [2008] ).   The fact that plaintiff argued that the verdict was against the weight of the evidence is of no moment, because he may not avoid the consequence of his failure to preserve his inconsistency argument by attempting to characterize it as an argument addressed to the weight of the evidence (see Sims v Comprehensive Community Dev. Corp., 40 AD3d 256, 258 [2007] ).

Were we to review the contention that the verdict was inconsistent as a result of the jury finding defendants departed from good and accepted medical practice without a finding of proximate cause as to the decedent's alleged injuries,

we would find that the verdict was neither inconsistent nor against the weight of the evidence (see generally Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 [1978] ).   There exists no basis to disturb the jury's credibility determinations (see e.g. Bykowsky v. Eskenazi, 72 AD3d 590 [2010], lv denied 16 NY3d 701 [2011] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK