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Morillo v. Pereyra

Supreme Court, New York County

May 23, 2013

NANCY MORILLO, as temporary administrator of DIVA MORILLO, Plaintiff,
v.
FANY PEREYRA, DDS, ST. VINCENT's MIDTOWN HOSPITAL and ST. CLARE'S HOSPITAL and HEALTH CENTER, Defendants. Index No. 109084/2007

Unpublished Opinion

DECISION AFTER TRIAL

EILEEN A. RAKOWER, J.S.C.

Plaintiff Diva Morillo ("Plaintiff) commenced the instant malpractice action against defendants Fanny Pereyra, DDS s/h/a Fany Pereyra, DDS ("Dr. Pereyra") and St. Vincent's Midtown Hospital f/k/a St. Clare's Hospital and Health Center ("SVMH") (collectively, "Defendants"). Plaintiffs action concerned the alleged negligent performance of a dental procedure in May 2005, resulting in injuries to Plaintiff.

A trial before a jury was conducted from January 28, 2013 to February 8, 2013. The jury returned a verdict on February 8, 2013.

Defendants now move for an Order (1) pursuant to CPLR §4404(a), vacating the jury's verdict to Plaintiff and directing judgment notwithstanding the verdict ("JNOV") in favor of Defendants on the basis that the jury's findings are not supported by sufficient evidence as a matter of law; (2) in the alternative, pursuant to CPLR §4404(a), vacating the jury's verdict to Plaintiff, and remanding the case for a trial, on the basis that the jury's findings are against the weight of the evidence; and (3) pursuant to CPLR §5501(c), vacating the damages award, or direct a remittitur, on the basis that the jury's damages verdict of $3 million for past pain and suffering deviates materially from reasonable compensation and is excessive under the circumstances.

Plaintiff cross moves for an Order pursuant to CPLR §4404(a) and/or GPLR §5501 (c) setting aside the jury's verdict with respect to damages herein as insufficient and against the weight of the evidence with respect to the jury's failure to award damages in the category of past and future medical expenses, custodial care and rehabilitation and in the category of future pain and suffering, and for additur with respect to the same. In the alternative, Plaintiff seeks an Order setting aside the jury's verdict with respect to interrogatories 1, 5, 7, and 8 of the verdict sheet as against the weight of the evidence, and directing a new trial on the issue of liability only, in the event that the Court sets aside the jury's finding of a departure by Dr. Pereyra based on the information she provided in consulting with Plaintiff s medical doctor Dr. Chun (jury interrogatories 3 and 4 of the verdict sheet)..

Defendants, in support of their motion, contend that a directed verdict in their favor is warranted on the basis that the evidence contradicts and invalidates the jury's findings on Questions 3 and 4 on the Verdict Sheet.

Plaintiff, in her cross motion, contends the jury's damages award is against the weight of evidence based on its failure to make any award for future pain and suffering or in the category of medical, custodial, or rehabilitated expenses.

Oral argument was held on April 16, 2013.

After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon, and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial.. . where the verdict is contrary to the weight of the evidence...

Pursuant to CPLR §4404(a), a trial court has discretion to set aside a verdict which is the product of substantial confusion among the jurors and grant a new trial. Confusion is shown when the answers to interrogatories on the verdict's sheet are internally inconsistent. See Vera v. Bielmotatik Corp., 199A.D. 2d 132, 133 [1st Dept 1993] ("The fact that a general verdict may have been rendered for the primary defendants is wholly inconsistent with the jury's detailed findings of liability and damages. Such internal inconsistency can only be remedied upon further consideration by the jury (obviously no longer possible) or by a new trial."). A verdict apportioning liability to a party even though the same jury has found that party's negligence was not a substantial factor in causing the accident is internally inconsistent. DePasquale v. Morbark Industries, Inc., 254 A.D. 2d450, 450 [2dDept 1998]).

Furthermore, "Where there is a substantial likelihood that the jury's verdict results from a trade off on a finding of liability, in return for a compromise on damages, the retrial should be on all issues." {Farmer v. A & T Bus Co., Inc., 96 A.D.2d 783, 783 [1st Dept. 1983]). See also Mitchell v. Port of Authority of New York and New Jersey, 65 A.D. 3d 943, 944 [ 1st Dept 2009]).

Question "1." Was extracting 8 of Diva Morillo's teeth using four carpules of 2% lidocaine with 1:100, 000 epinephrine a departure from good and accepted dental practice on May 13, 2005?
Answer: No. (5 out of 6 jurors)
IF YOUR ANSWER TO QUESTION "1" IS "NO, " GO TO QUESTIONS."
Question "3." Did the defendant, Fanney Pereyra, DDS depart from good and accepted dental practice with respect to the information she provided to Dr. ...

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