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

Carole COHEN, et al., appellants, v. Martin Phillip KASOFSKY, etc., et al., respondents.

Decided: October 28, 2008

REINALDO E. RIVERA, J.P., ROBERT A. SPOLZINO, ANITA R. FLORIO, and JOHN M. LEVENTHAL, JJ. Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Stephen C. Glasser of counsel), for appellants. Rende, Ryan & Downes, LLP, White Plains, N.Y. (Roland T. Koke of counsel), for respondents Martin Phillip Kasofsky and St. Luke's Cornwall Hospital. Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano of counsel), for respondents Ronald R. Coffey, and Ronald R. Coffey, Medical Services, P.C.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Orange County (Slobod, J.), dated March 29, 2007, which denied their motion for a mistrial or, in the alternative, pursuant to CPLR 4404 to set aside a jury verdict in favor of the defendants and for a new trial, and (2) a judgment of the same court dated May 23, 2007, which, upon the jury verdict in favor of the defendants, and upon the order dated March 29, 2007, is in favor of the defendants and against them dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] [1] ).

 The plaintiffs contend that the verdict finding that the defendant Ronald R. Coffey departed from good and accepted medical practice but that such departure was not a substantial factor in causing injury to the plaintiff Carole Cohen was against the weight of the evidence.   Where, as here, the parties presented expert testimony in support of their respective positions, it was within the province of the jury to determine the experts' credibility (see Manuka v. Crenshaw, 43 A.D.3d 886, 887, 841 N.Y.S.2d 782).   The jury was entitled to credit the testimony of Dr. Coffey's expert over that of the plaintiffs' expert on the issue of causation, and its verdict, based on a fair interpretation of the evidence, was not against the weight 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;  Cohen v. Hallmark Cards, 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, 134, 495 N.Y.S.2d 184).

 The plaintiffs contend that the Supreme Court erred in giving a missing witness charge for their failure to call two doctors on the issue of damages.   Their contention that the doctors were unavailable because their offices were located in New Jersey was not raised during the charge conference, and thus, is not properly before this Court (see generally Mann v. All Waste Sys., 293 A.D.2d 656, 741 N.Y.S.2d 272).   Further, the plaintiffs failed to rebut the defendants' contention that the evidence was noncumulative (see Buttice v. Dyer, 1 A.D.3d 552, 552-553, 767 N.Y.S.2d 784).   Thus, the Supreme Court providently exercised its discretion in giving the charge (see Wilson v. Bodian, 130 A.D.2d 221, 235, 519 N.Y.S.2d 126;  cf. LaGrasta v. Ettayyim, 5 A.D.3d 737, 774 N.Y.S.2d 178).   In any event, because the missing witness charge pertained only to damages, and because the jury never reached the issue of damages, any error was harmless and may not serve as a ground for a new trial (see Morton v. New York City Health & Hosps. Corp., 8 A.D.3d 122, 123, 779 N.Y.S.2d 35).

 The Supreme Court providently exercised its discretion in precluding the plaintiffs, on the eve of trial, from expanding their theory of Dr. Coffey's liability to include an alleged act of malpractice in 2002, reasoning that the complaint and bills of particulars included only allegations of malpractice commencing in April 2003 (see Rosa v. Westchester County Med. Ctr., 233 A.D.2d 311, 312, 649 N.Y.S.2d 179;  Bosch v. City of New York, 143 A.D.2d 607, 608, 533 N.Y.S.2d 425).   Contrary to the plaintiffs' contention, during summation the attorney for Dr. Coffey did not contravene the court's ruling by commenting upon testimony concerning events in 2002 which had been elicited by the plaintiffs.   Thus, the summation did not deprive the plaintiffs of a fair trial (see Alston v. Sunharbor Manor, LLC, 48 A.D.3d 600, 603, 854 N.Y.S.2d 402).

The plaintiffs further contend that additional summation comments deprived them of a fair trial.   However, the plaintiffs failed to preserve for appellate review their contentions with respect to most of the comments (see Friedman v. Marcus, 32 A.D.3d 820, 821 N.Y.S.2d 136;  Ritz v. Lee, 273 A.D.2d 291, 709 N.Y.S.2d 846;  Lind v. City of New York, 270 A.D.2d 315, 317, 705 N.Y.S.2d 59).   In any event, the defense summation did not divert the jurors' attention from the issues to be determined or otherwise deprive the plaintiffs of a fair trial (see Vingo v. Rosner, 29 A.D.3d 896, 897, 816 N.Y.S.2d 517;  Torrado v. Lutheran Med. Ctr., 198 A.D.2d 346, 347, 603 N.Y.S.2d 325).

The plaintiffs' remaining contentions are without merit.

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