Opinion
2001-03374
Argued June 11, 2002
August 12, 2002
In an action to recover damages for medical malpractice, the defendants Anesthesia Associates of Jamaica, and Hong R. Cho and Igor Azrieli, individually and as partners of Anesthesia Associates of Jamaica, appeal from a judgment of the Supreme Court, Queens County (Schulman, J.), dated March 1, 2001, which, upon a jury verdict, and upon an order denying their motion pursuant to CPLR 4404 to set aside the verdict, is in favor of the plaintiff and against them in the total sum of $646,098.92.
Rivkin, Radler, LLP, Uniondale, N.Y. (Evan H. Krinick and Cheryl F. Korman of counsel), for appellants.
Seligson, Rothman Rothman, New York, N.Y. (Martin S. Rothman, Anthony J. DeMarco, Jr., Laurence E. Jacobson, and Alyne I. Diamond of counsel), for respondent.
Before: DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, NANCY E. SMITH, THOMAS A. ADAMS, JJ.
ORDERED that the judgment is reversed, as a matter of discretion, the order is vacated, the motion is granted, and a new trial is granted, with costs to abide the event.
Contrary to the appellants' contention, the verdict was based upon a fair interpretation of the evidence and, therefore, will not be set aside as being against the weight of the evidence (see Nicastro v. Park, 113 A.D.2d 129, 134). However, the Supreme Court improvidently exercised its discretion in denying the appellants a short adjournment to locate a witness. The witness' testimony was material, the application was properly made and was not made for purpose of delay, and the need for the adjournment did not result from the appellants' failure to exercise due diligence (see Matter of Shepard, 286 A.D.2d 336; Matter of Weinstock, 283 A.D.2d 511). Thus, a new trial is granted. If the witness is unavailable within the meaning of CPLR 3117(a)(3), her deposition testimony may be offered at the new trial.
In light of this determination, the appellants' remaining contentions need not be reached.
RITTER, J.P., FEUERSTEIN, SMITH and ADAMS, JJ., concur.