Chadwick v. Gioia

Appeal from a judgment of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered November 29, 2004 in a medical malpractice action. The judgment, upon a jury verdict, dismissed the complaint. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs appeal from a judgment, entered upon a jury verdict of no cause of action, dismissing the complaint in this medical malpractice action. Plaintiffs requested a charge on foreseeability and proximate cause and thus waived their contention that Supreme Court erred in so charging the jury (see Schmidt v Buffalo Gen. Hosp., 278 AD2d 827, 828 [2000], lv denied 96 NY2d 710 [2001]; Sandoval v Stanley Works & Tools Div., 261 AD2d 885 [1999]; see generally Matter of Humberstone v Wheaton, 21 AD3d 1416, 1417 [2005]). In addition, plaintiffs failed to object to the charge as given, and thus their additional challenges to the court’s charge are unpreserved for our review (see CPLR 4110-b; Balsz v A & T Bus Co., 252 AD2d 458, 459 [1998]). We reject the further contention of plaintiffs that the court erred in denying their motion to set aside the verdict as against the weight of the evidence. “[T]he preponderance of the evidence in favor of plaintiff[s] is not so great that the verdict could not have been reached upon any fair interpretation of the evidence, nor is the verdict [finding that defendant physician was not negligent] palpably wrong or irrational” (Kettles v City of Rochester, 21 AD3d 1424, 1425 [2005]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; McClain v Lockport Mem. Hosp., 236 AD2d 864, 865 [1997], lv denied 89 NY2d 817 [1997]). [1080] We reject plaintiffs’ contention that the court erred in striking portions of the testimony of plaintiff Jacqueline Chadwick, inasmuch as the record establishes that those portions were not relevant to the issues at trial. We have considered plaintiffs’ remaining contentions and conclude that they are without merit. Present—Kehoe, J.P., Martoche, Smith, Pine and Hayes, JJ.