Wasserberg v. Menorah Ctr. for Rehab. & Nursing Care

197 A.D.3d 1130

153 N.Y.S.3d 479

Craig WASSERBERG, etc., appellant-respondent,

v.MENORAH CENTER FOR REHABILITATION AND NURSING CARE, respondent-appellant.

2018-14103

Index No. 13851/14

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

Argued—June 7, 2021

September 1, 2021

Burns & Harris, New York, N.Y. (Seth A. Harris, Brian J. Isaac, and Judith F. Stempler of counsel), for appellant-respondent.

Vaslas Lepowsky Hauss & Danke LLP (Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. [Christopher Simone and Lena Holubnyczyj ], of counsel), for respondent-appellant.

CHERYL E. CHAMBERS, J.P., VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated October 17, 2018. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was pursuant to CPLR 4404(a) to set aside a jury verdict on the issue of damages as inadequate and contrary to the weight of the evidence. The order, insofar as cross-appealed from, denied the defendant's cross motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff on the issue of liability and for judgment as a matter of law dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendant after the plaintiff's decedent, Nathan Wasserberg, choked on a piece of meat, went into cardiac arrest, lapsed into a comatose state, and died several weeks later. At the conclusion of the trial, the jury rendered a verdict in favor of the plaintiff finding that the members of the defendant's staff who performed CPR on the decedent failed to check the decedent's airway for an obstruction, that this failure was a departure from accepted standards of medical care, and that this departure was a substantial factor in causing the decedent's injuries. The jury awarded the plaintiff damages in the principal sum of $300,000 for the decedent's conscious pain and suffering.

Thereafter, the plaintiff moved, among other things, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of damages as inadequate and contrary to the weight of the evidence. The defendant cross-moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law dismissing the complaint. In an order dated October 17, 2018, the Supreme Court, inter alia, denied the defendant's cross motion and that branch of the plaintiff's motion which was to set aside the damages verdict as inadequate and contrary to the weight of the evidence. The plaintiff appeals, and the defendant cross-appeals.

" ‘A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by which the jury...