SALMERI v. (and a third-party action).

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

Vincent SALMERI, respondent, v. BETH ISRAEL MEDICAL CENTER-KINGS HIGHWAY DIVISION, et al., appellants. (and a third-party action).

Decided: April 24, 2007

ROBERT W. SCHMIDT, J.P., WILLIAM F. MASTRO, EDWARD D. CARNI, and THOMAS A. DICKERSON, JJ. Aaronson Rappaport Feinstein & Deutsch, LLP (Bartlett McDonough Bastone & Monaghan, LLP, White Plains, N.Y. [Edward J. Guardaro, Jr.] of counsel), for appellant Beth Israel Medical Center-Kings Highway Division. Gordon & Silber, P.C. (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. [Steven J. Ahmuty, Jr., Christopher Simone, and William J. Kelly] of counsel), for appellant Richard Luft. Brown & Tarantino, LLC, White Plains, N.Y. (Katherine W. Dandy and Steven W. Kraus of counsel), for appellant Alan Berlly. Godosky & Gentile, P.C., New York, N.Y. (Richard Godosky, Pasquale V. Vairo, and Brian J. Isaac of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants separately appeal, as limited by their briefs, from so much of a judgment of the Supreme Court, Kings County (Steinhardt, J.), dated April 20, 2006, as, upon a jury verdict on the issues of liability and damages finding, inter alia, that the plaintiff sustained damages in the principal sums of $320,000 for past pain and suffering and $1,500,000 for future pain and suffering, and upon the denial of their motions pursuant to CPLR 4401 and 4404 for judgment as a matter of law dismissing the complaint or, alternatively, pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence and for a new trial, is in favor of the plaintiff and against them in the principal sum of $1,820,000.

ORDERED that the judgment is affirmed insofar as appealed from, with one bill of costs.

 To establish a prima facie case of liability in a medical malpractice action, a plaintiff must prove that the defendant deviated from accepted practice and that such deviation proximately caused his injuries (see Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509;  Anderson v. Lamaute, 306 A.D.2d 232, 233, 761 N.Y.S.2d 87;  Prete v. Rafla-Demetrious, 224 A.D.2d 674, 675, 638 N.Y.S.2d 700).   To meet this burden, a plaintiff ordinarily presents expert testimony showing that the defendant's conduct deviated from the requisite standard of care (see Texter v. Middletown Dialysis Ctr., Inc., 22 A.D.3d 831, 803 N.Y.S.2d 687).   Here, there was legally sufficient evidence to support the jury verdict finding that the defendant physicians deviated from accepted practice in their assessment, treatment, and care of the plaintiff's acute perforated diverticulum, and that such deviation proximately caused his injuries (see Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Nicastro v. Park, 113 A.D.2d 129, 132, 495 N.Y.S.2d 184;  see also Fellin v. Sahgal, 35 A.D.3d 800, 826 N.Y.S.2d 731;  Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346).

 Moreover, the verdict was not against the weight of the evidence.   Where both the plaintiff and the defendants presented expert testimony in support of their respective positions, it was the province of the jury to determine the experts' credibility (see Cohen v. Hallmark Cards, Inc., supra at 498-499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Fellin v. Sahgal, supra;  Texter v. Middletown Dialysis Ctr., Inc., supra at 832, 803 N.Y.S.2d 687;  Wong v. Tang, 2 A.D.3d 840, 769 N.Y.S.2d 381;  Velez v. Policastro, 1 A.D.3d 429, 431, 766 N.Y.S.2d 684;  Nicastro v. Park, supra at 133-134, 495 N.Y.S.2d 184).

 The award of damages for the plaintiff's future pain and suffering did not deviate materially from what would be considered reasonable compensation (see CPLR 5501[c];  Wisholek v. Douglas, 280 A.D.2d 220, 224, 722 N.Y.S.2d 316, revd. on other grounds 97 N.Y.2d 740, 743 N.Y.S.2d 51, 769 N.E.2d 808;  Krueger v. Frisenda, 218 A.D.2d 685, 630 N.Y.S.2d 376).

The defendants' remaining contentions are without merit.

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