Bota v. Kaminsky

Nov 21, 2002
Versions:299 A.D.2d 259
749 N.Y.S.2d 714
2002 N.Y. App. Div. LEXIS 11250

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered July 20, 2001, which denied plaintiffs motion to set aside the verdict as against the weight of the evidence, unanimously affirmed, without costs.

The court properly declined to set aside the verdict in favor of defendant. It was for the jury to resolve the conflict in the parties’ testimony as to whether or not an adequate warning was given of the reasonably foreseeable risks involved in the tooth extraction at issue, and to determine whether the particular injury suffered was encompassed in the warning actually given or was the type of risk requiring a more specific warning (see Marchione v State of New York, 194 AD2d 851, 854; Public Health Law § 2805-d). Furthermore, the jury could have reasonably concluded that defendant advised plaintiff of all viable alternatives to the procedure. Contrary to plaintiffs argument, defendant’s testimony did not contain any concessions of liability, but instead raised issues of fact for the jury. Concur— Nardelli, J.P., Mazzarelli, Sullivan, Ellerin and Marlow, JJ.