DiCICCO v. CATTANI

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

Antoinette DiCICCO, respondent, v. Robert V. CATTANI, etc., appellant.

Decided: February 24, 2009

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, STEVEN W. FISHER, and MARK C. DILLON, JJ. Costello, Shea & Gaffney LLP, New York, N.Y. (Frederick N. Gaffney, Michael J. Morris, and Steven E. Garry of counsel), for appellant. Rich & Rich, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.

In an action, inter alia, to recover damages for medical malpractice, the defendant appeals from (1) a judgment of the Supreme Court, Richmond County (Giacobbe, J.), entered April 13, 2007, which, upon a jury verdict finding that the plaintiff sustained damages in the principal sum of $737,000, is in favor of the plaintiff and against him in the principal sum of $737,000, and (2) an order of the same court entered January 22, 2008, which denied his motion, among other things, pursuant to CPLR 4404(a).

ORDERED that the judgment is reversed, on the law, and the matter is remitted to the Supreme Court, Richmond County, for a new trial;  and it is further,

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

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

 The defendant's request to charge the jury on the issue of comparative negligence was erroneously denied by the trial court.   Instruction on the question of comparative negligence should be given to the jury where there is any valid line of reasoning or permissible inferences which could possibly lead rational individuals to the conclusion of negligence on the basis of the evidence presented at trial (see Bruni v. City of New York, 2 N.Y.3d 319, 328, 778 N.Y.S.2d 757, 811 N.E.2d 19;  Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145;  Marus v. Village Med., 51 A.D.3d 879, 858 N.Y.S.2d 735).   Furthermore, whether a plaintiff is comparatively negligent is almost invariably a question of fact and is for the jury to determine in all but the clearest cases (see Shea v. New York City Tr. Auth., 289 A.D.2d 558, 559, 735 N.Y.S.2d 609).   Based upon the evidence adduced at trial, the jury could rationally conclude that the plaintiff's actions contributed to her injuries.   Accordingly, a new trial is warranted (see McConville v. Reinauer Transp. Cos., LP, 40 A.D.3d 715, 716, 835 N.Y.S.2d 711;  Shea v. New York City Tr. Auth., 289 A.D.2d at 559, 735 N.Y.S.2d 609).

The defendant's remaining contentions are without merit.

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