Desmond v. Nassau Hospital

—In a medical malpractice action to recover damages for wrongful death, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Becker, J.), dated June 23, 1988, which, after a hearing, denied the plaintiff’s motion pursuant to CPLR 4404 to set aside a jury verdict in favor of the defendant Mercurio, and (2) a judgment of the same court, entered July 20, 1988, which, upon a jury verdict, is in favor of the defendant Mercurio and against him. 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 the defendant Mercurio is awarded one bill of costs. 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 NY2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]). The gravamen of the instant medical malpractice action was that the defendant Mercurio failed to diagnose a condition of bacterial meningitis. At the conclusion of the trial, the jury returned a verdict in favor of the defendant Mercurio. Thereafter, the plaintiff moved pursuant to CPLR 4404 (a) to set aside the verdict based, inter alia, on juror misconduct. Specifically, the plaintiff alleged that one of the jurors had done research on the subject of meningitis and had a copy of certain material in her possession during the jury’s deliberation. A hearing was conducted, and at the conclusion thereof, the Supreme Court denied the plaintiff’s motion. We affirm. The record indicates that the copied material consisted of a definition of meningitis taken from a medical dictionary. However, the definition of meningitis was not a material issue in the instant action and the juror in question did not "really read [the definition] through” or "use it as any basis for [her] deliberations”. Further, the testimony adduced at the hearing indicated that the copied material was never disseminated, in any manner, to the other jurors. Under these circumstances, the Supreme Court properly denied the plaintiffs motion to set aside the verdict (Richardson, Evidence § 407 [Prince 10th ed]; People v Brown, 48 NY2d 388, 394; People v Sprague, 217 [830] NY 373; cf., Maslinski v Brunswick Hosp. Center, 118 AD2d 834; Long v Payne, 198 App Div 667). Mollen, P. J., Mangano, Kunzeman and Kooper, JJ., concur.