Deontae Banister, etc., et al., appellants, v Belinda Marquis, et al., respondents. v. <<

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

Deontae Banister, etc., et al., appellants, v Belinda Marquis, et al., respondents.

2009–07278 2009–10504 2009–10519 (Index No. 27310/04)

Decided: September 20, 2011

MARK C. DILLON, J.P. ANITA R. FLORIO CHERYL E. CHAMBERS ROBERT J. MILLER, JJ. Gurfein Douglas, LLP, New York, N.Y. (Richard A. Gurfein, Preston J. Douglas, and The Breakstone Law Firm, P.C. [Jay L.T. Breakstone], of counsel), for appellants. Mauro Lilling Naparty, LLP, Great Neck, N.Y. (Caryn L. Lilling and Katherine Herr Solomon of counsel), for respondent Belinda Marquis. Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), for respondent St. Charles Hospital. Michael A. Haskel, Mineola, N.Y. (Susan Haskel of counsel), for respondent Wesley V. Carrion. The trial court properly admitted into evidence the reports of a radiologist from Long Island Jewish Medical Center, as they were germane to the diagnosis and treatment of the infant plaintiff (see CPLR 2306, 4518[a], [c];  Murray v Weisenfeld, 37 AD3d 432, 433;  Bruce–Bishop v Jafar, 302 A.D.2d 345;  Fanelli v diLorenzo, 187 A.D.2d 1004, 1005;  Maxcy v County of Putnam, 178 A.D.2d 729;  Wilson v Bodian, 130 A.D.2d 221, 229).   Further, it was not improper for the defendants ‘ experts to rely, in part, upon those reports in formulating their opinions (see O'Shea v Sarro, 106 A.D.2d 435, 437). The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 A.D.2d 569, 570).   However, the error was harmless (see CPLR 2002;  Kropf v New York Hosp., 212 A.D.2d 761).   The trial court's comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 A.D.2d 424).

Argued—March 29, 2011

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) a judgment of the Supreme Court, Suffolk County (Spinner, J.), entered July 1, 2009, which, upon the granting of the motion of the defendant St. Charles Hospital pursuant to CPLR 4401 for judgment as a matter of law, made at the close of the evidence, is in favor of that defendant and against them, dismissing the complaint insofar as asserted against that defendant, (2) a judgment of the same court entered October 16, 2009, which, upon a jury verdict in favor of the defendant Wesley V. Carrion and against them, is in favor of that defendant and against them, dismissing the complaint insofar as asserted against that defendant, and (3) a judgment of the same court also entered October 16, 2009, which, upon a jury verdict in favor of the defendant Belinda Marquis and against them, is in favor of that defendant and against them, dismissing the complaint insofar as asserted against that defendant.

ORDERED that the judgments are affirmed, with one bill of costs.

Contrary to the plaintiffs' contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify.   The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i];  Lucian v. Schwartz, 55 AD3d 687, 688;  Caccioppoli v. City of New York, 50 AD3d 1079, 1080).

The plaintiffs' remaining contentions are without merit.

DILLON, J.P., FLORIO, CHAMBERS and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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