LADER v. SHERMAN

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

Micha LADER, respondent, v. Mark F. SHERMAN, et al., appellants.

Decided: January 27, 2009

ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, RUTH C. BALKIN, and ARIEL E. BELEN, JJ. Vaslas Lepowsky Hauss & Danke LLP, Staten Island, N.Y. (Neil Schreffler of counsel), for appellants. Warner & Scheuerman, New York, N.Y. (Jonathon D. Warner of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Satterfield, J.), dated August 3, 2007, which granted the plaintiff's motion pursuant to CPLR 4404(a) to set aside the jury verdict as against the weight of the evidence and for a new trial.

ORDERED that the order is affirmed, with costs.

A jury verdict should not be set aside as against the weight of the evidence unless the verdict could not have been reached upon any fair interpretation of the evidence (see Lolik v. Big V. Supermarkets, 86 N.Y.2d 744, 631 N.Y.S.2d 122, 655 N.E.2d 163;  Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184).   Here, the jury's finding that the defendant Mark F. Sherman departed from accepted medical practice in performing surgery on the plaintiff's left leg, but that the departure was not a proximate cause of the plaintiff's injuries, was against the weight of the evidence since the issues are so inextricably interwoven as to make it logically impossible to find a departure without also finding proximate cause (see Rodriguez v. Elmont School Dist., 37 A.D.3d 448, 829 N.Y.S.2d 221;  Garrett v. Manaser, 8 A.D.3d 616, 779 N.Y.S.2d 565;  Misa v. Filancia, 2 A.D.3d 810, 769 N.Y.S.2d 404).

The defendants' remaining contention is without merit.

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