CROCKETT v. LONG BEACH MEDICAL CENTER

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

Leslie CROCKETT, respondent, v. LONG BEACH MEDICAL CENTER, appellant.

Decided: February 28, 2005

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, SONDRA MILLER, and FRED T. SANTUCCI, JJ. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., of counsel), for appellant. Joseph P. Ferri, Jr., Garden City, N.Y. (Paula Schwartz Frome of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendant appeals from a judgment of the Supreme Court, Nassau County (Davis, J.), entered May 1, 2003, which, upon a jury verdict, and upon an order of the same court entered October 2, 2002, inter alia, denying that branch of its motion which was to set aside the verdict pursuant to CPLR 4404, is in favor of the plaintiff and against it in the total sum of $507,679.81.

ORDERED that the judgment is affirmed, with costs.

 Contrary to the defendant's contention, the plaintiff adduced sufficient evidence at trial from which the jury could rationally conclude that the defendant departed from accepted medical and nursing practice in the administration of an intra-muscular injection (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Foley v. Flushing Hosp. & Med. Ctr., 34 N.Y.2d 863, 864, 359 N.Y.S.2d 113, 316 N.E.2d 579;  Day v. Hospital for Joint Diseases Orthopaedic Inst., 11 A.D.3d 505, 782 N.Y.S.2d 847;  King v. McMillan, 8 A.D.3d 447, 778 N.Y.S.2d 290;   McMurray v. Staten Is. Univ. Hosp., 7 A.D.3d 764, 777 N.Y.S.2d 305).   Moreover, it cannot be said that the jury could not have reached its verdict on any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Day v. Hospital for Joint Diseases Orthopaedic Inst., supra;  Gerdik v. Van Ess, 5 A.D.3d 726, 774 N.Y.S.2d 174;  Nicastro v. Park, 113 A.D.2d 129, 133, 495 N.Y.S.2d 184).   The conflicting testimony of the parties and their medical experts presented issues of credibility to be resolved by the jury, which had the opportunity to observe and assess the witnesses and the evidence (see Day v. Hospital for Joint Diseases Orthopaedic Inst., supra;  Gerdik v. Van Ess, supra;  Citron v. Northern Dutchess Hosp., 198 A.D.2d 618, 620, 603 N.Y.S.2d 639;  Widman v. Horwitz, 189 A.D.2d 812, 592 N.Y.S.2d 463;  see also McDonagh v. Victoria's Secret, Inc., 9 A.D.3d 395, 781 N.Y.S.2d 525).

 In addition, the amount of the award of damages for personal injuries is primarily a question for the jury (see Day v. Hospital for Joint Diseases Orthopaedic Inst., supra;  Quackenbush v. Gar-Ben Assoc., 2 A.D.3d 824, 769 N.Y.S.2d 387;  Lamb v. Babies ‘R’ Us, 302 A.D.2d 368, 754 N.Y.S.2d 356;  Balsam v. City of New York, 298 A.D.2d 479, 480, 748 N.Y.S.2d 779;  Stylianou v. Calabrese, 297 A.D.2d 798, 748 N.Y.S.2d 36), whose determination is entitled to great deference (see Day v. Hospital for Joint Diseases Orthopaedic Inst., supra;  Quackenbush v. Gar-Ben Assoc., supra;  Lamb v. Babies ‘R’ Us, supra ).   Upon our consideration of the nature and extent of the injuries sustained by the plaintiff, we find that the jury's awards for past and future pain and suffering did not materially deviate from what would be considered reasonable compensation (see CPLR 5501[c];  Day v. Hospital for Joint Diseases Orthopaedic Inst., supra;  Jones v. Davis, 307 A.D.2d 494, 495, 497-498, 763 N.Y.S.2d 136;  Paternoster v. Drehmer, 260 A.D.2d 867, 688 N.Y.S.2d 778;  Fischl v. Carbone, 199 A.D.2d 463, 606 N.Y.S.2d 53).   Moreover, the plaintiff satisfied her burden of establishing, with reasonable certainty, her entitlement to an award for past and future loss of income (see Tassone v. Mid-Valley Oil Co., 5 A.D.3d 931, 773 N.Y.S.2d 744, lv. denied 3 N.Y.3d 608, 785 N.Y.S.2d 26, 818 N.E.2d 668;  Faas v. State of New York, 249 A.D.2d 731, 732-733, 672 N.Y.S.2d 145), and the amount awarded for those damages did not deviate from what would be considered reasonable compensation (see CPLR 5501[c];  Madtes v. 809A 8th Ave. Rest., 184 A.D.2d 326, 585 N.Y.S.2d 210).

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