Opinion
2015-03149 Index No. 6952/11
04-29-2020
Ludmila RUDLE, Respondent, v. Gregory SHIFRIN, etc., et al., Appellants.
Pilkington & Leggett, P.C. (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lilling and Katherine Herr Solomon ], of counsel), for appellants. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser of counsel), for respondent.
Pilkington & Leggett, P.C. (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Caryn L. Lilling and Katherine Herr Solomon ], of counsel), for appellants.
Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.
DECISION & ORDER
ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, with costs, that branch of the defendants' motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability in the interest of justice and for a new trial is granted, the motion is otherwise denied as academic, and the matter is remitted to the Supreme Court, Kings County, for a new trial.
On September 4, 2010, the defendant Gregory Shifrin (hereinafter the defendant) examined the plaintiff, who was complaining of lower abdominal pain. The plaintiff disclosed that she had a history of uterine fibroids and had experienced menopause. The defendant's examination revealed a mass in the plaintiff's uterus for which he recommended that the plaintiff undergo a dilation and curettage procedure (hereinafter D & C). On September 11, 2010, the defendant performed a D & C on the plaintiff in his office. During the D & C, the plaintiff's uterus and bowel were punctured.
Thereafter, the plaintiff commenced this medical malpractice action against the defendant, among others. The plaintiff alleged that the defendant departed from good and accepted medical practice in the manner in which he performed the D & C.
A jury trial resulted in a verdict in the plaintiff's favor on the issue of liability and awarding damages, including an award of $400,000 for future pain and suffering for a period of five years. The defendants moved pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability in the interest of justice and for a new trial or, in the alternative, to set aside the jury verdict on the issue of damages for future pain and suffering as contrary to the weight of the evidence and as excessive and for a new trial on the issue of damages for future pain and suffering unless the plaintiff stipulated to a reduction of the damages awarded for future pain and suffering. The Supreme Court denied the defendants' motion. The defendants appeal.
"A motion pursuant to CPLR 4404(a) to set aside a verdict and for a new trial in the interest of justice encompasses errors in the trial court's rulings on the admissibility of evidence, mistakes in the charge, misconduct, newly discovered evidence, and surprise" ( Russo v. Levat , 143 A.D.3d 966, 968, 41 N.Y.S.3d 230 ; see Simon v. Granite Bldg. 2, LLC , 170 A.D.3d 1227, 1231, 97 N.Y.S.3d 240 ). "In considering such a motion, ‘[t]he Trial Judge must decide whether substantial justice has been done, whether it is likely that the verdict has been affected and must look to his [or her] own common sense, experience and sense of fairness rather than to precedents in arriving at a decision’ " ( Daniele v. Pain Mgt. Ctr. of Long Is. , 168 A.D.3d 672, 676, 91 N.Y.S.3d 496, quoting Micallef v. Miehle Co., Div. of Miehle–Goss Dexter , 39 N.Y.2d 376, 381, 384 N.Y.S.2d 115, 348 N.E.2d 571 [internal quotation marks omitted] ). Here, the Supreme Court should not have permitted the plaintiff to introduce extrinsic documentary evidence concerning collateral matters solely for the purpose of impeaching the defendant's credibility (see Mazella v. Beals , 27 N.Y.3d 694, 711, 37 N.Y.S.3d 46, 57 N.E.3d 1083 ; Badr v. Hogan, 75 N.Y.2d 629, 634–635, 555 N.Y.S.2d 249, 554 N.E.2d 890 ). In view of the importance of the defendant's testimony and the emphasis given to the improperly admitted credibility evidence by the plaintiff's counsel during summation, the errors were sufficiently prejudicial to warrant a new trial (see Badr v. Hogan , 75 N.Y.2d at 636–637, 555 N.Y.S.2d 249, 554 N.E.2d 890 ; Morency v. Horizon Transp. Servs., Inc. , 139 A.D.3d 1021, 1024, 33 N.Y.S.3d 319 ). Accordingly, we remit the matter to Supreme Court, Kings County, for a new trial.
In light of our determination, we need not reach the defendants' remaining contentions.
SCHEINKMAN, P.J., AUSTIN, HINDS–RADIX and WOOTEN, JJ., concur.