KRAVIS v. HORN

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

Roseanne KRAVIS, et al., Appellants, v. Stewart HORN, Respondent.

Decided: October 26, 1998

RITTER, J.P., SANTUCCI, ALTMAN and KRAUSMAN, JJ. Herman & Kramer, L.L.P., New York (Harold Samuel Herman of counsel), for appellants. Lewis, Johs, Avallone, Aviles & Kaufman, Melville (John M. Denby of counsel), for respondent.

In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Alpert, J.), dated June 30, 1997, which denied their posttrial motion pursuant to CPLR 4404(a) to set aside so much of the jury verdict as failed to award them damages for pain and suffering, lost earnings, and loss of services.

ORDERED that the order is affirmed, with costs.

 A jury verdict may be set aside as against the weight of the evidence only when the jury could not have reached its verdict by any fair interpretation of the evidence (see, Grassi v. Ulrich, 87 N.Y.2d 954, 641 N.Y.S.2d 588, 664 N.E.2d 499;  Teehan v. Command Bus Co., 251 A.D.2d 321, 673 N.Y.S.2d 1010 ).   Here there was evidence adduced by which a reasonable jury could conclude that the defendant's conceded departure from good and accepted medical practice was not the proximate cause of all of the injuries allegedly sustained by the plaintiff Roseanne Kravis (see, Levitt v. Lenox Hill Hosp., 184 A.D.2d 427, 585 N.Y.S.2d 401).

Furthermore, contrary to the plaintiffs' contention, the court's charge with respect to foreseeability and intervening cause was proper inasmuch as it stated the law as applicable to the particular facts at issue, which the evidence tended to prove (see, Green v. Downs, 27 N.Y.2d 205, 316 N.Y.S.2d 221, 265 N.E.2d 68;  Martino v. Triangle Rubber Co., 249 A.D.2d 454, 671 N.Y.S.2d 524 ).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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