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

Susan Marsha GRASSO, respondent, et al., plaintiff, v. Rafael F. CAPELLA, etc., appellant.

Decided: April 26, 1999

FRED T. SANTUCCI, J.P., THOMAS R. SULLIVAN, ANITA R. FLORIO and LEO F. McGINITY, JJ. Kopff, Nardelli & Dopf, L.L.P., New York, N.Y. (Martin B. Adams and Mary E. Pearson of counsel), for appellant. Julien & Schlesinger, P.C., New York, N.Y. (Richard A. Robbins and Mary Elizabeth Burns of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendant appeals from a judgment of the Supreme Court, Rockland County (Bergerman, J.), dated March 26, 1998, which, upon a jury verdict, and upon the denial of his motion pursuant to CPLR 4404(a) to set aside the verdict, is in favor of the plaintiff Susan Marsha Grasso and against him in the principal sum of $90,000.

ORDERED that the judgment is affirmed, with costs.

The trial court did not err in refusing to give the “error of judgment” charge contained in Pattern Jury Instruction 2:150.   There was no evidence that the defendant, a surgeon, had to consider and choose among medically-acceptable alternatives regarding the treatment of the plaintiff.   Accordingly, under the circumstances of this case, the defendant was not required to exercise the type of medical judgment which would warrant the giving of the “error of judgment” charge (see, Spadaccini v. Dolan, 63 A.D.2d 110, 407 N.Y.S.2d 840;  cf., Capolino v. New York City Health & Hosps. Corp., 199 A.D.2d 173, 605 N.Y.S.2d 87;  Brault v. Kenmore Mercy Hosp., 142 A.D.2d 945, 530 N.Y.S.2d 369).


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