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Kotlyar v. Strogov

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 20, 2009

ALLA KOTLYAR, RESPONDENT,
v.
EMILIA STROGOV, ETC., APPELLANT.

In an action to recover damages for medical malpractice and lack of informed consent, the defendant appeals from an order of the Supreme Court, Kings County (Marano, J.H.O.), dated October 26, 2007, which, after an inquest on the issue of damages, awarded the plaintiff $50,000.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., HOWARD MILLER, EDWARD D. CARNI and RUTH C. BALKIN, JJ.

(Index No. 27984/02)

DECISION & ORDER

ORDERED that on the Court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a new inquest on the issue of damages.

In her complaint, the plaintiff alleged damages which included pain and suffering, lost earnings, and medical expenses. After an inquest on the issue of damages, the court awarded the plaintiff $50,000, without specifying whether the award was for pain and suffering, lost earnings, and/or medical expenses. Under the circumstances, and given the speculative nature of much of the plaintiff's proof at the inquest (see Guerrero v Djuko Realty, 300 AD2d 542, 543; Schwartzman v Friedler, 279 AD2d 517), and the court's error in admitting uncertified medical records into evidence (see CPLR 4518[c], 2106; Abbas v Cole, 7 AD3d 649, 649-650; cf. Grasso v Angerami, 79 NY2d 813, 814-815; Elder v Stokes, 35 AD3d 799; Nkhereanye v Hillaire, 35 AD3d 419, 420), we remit the matter to the Supreme Court, Kings County, for a new inquest on the issue of damages.

FISHER, J.P., MILLER, CARNI and BALKIN, JJ., concur.

20090120

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