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DRITA MANUKA, Respondent, v. WENDY CRENSHAW et al., Defendants, PAUL ENNIN, Appellant, and INTERFAITH MEDICAL CENTER, Defendant and Third-Party Plaintiff-Appellant-Respondent. ENNIN BAAH, P.C., et al., Third-Party Defendants-Appellants.

Ordered that the judgment is affirmed, with one bill of costs payable to the plaintiff by the defendant Paul Ennin and the defendant third-party plaintiff Interfaith Medical Center appearing separately and filing separate briefs, and one bill of costs payable to the defendant third-party plaintiff Interfaith Medical Center, by the third-party defendants appearing separately and filing separate briefs.

To establish a prima facie case of liability in an action to recover damages for medical malpractice, the plaintiff must prove that the defendant deviated from accepted practice, and that such deviation proximately caused his or her injuries ( see Salmeri v Beth Israel Med. Ctr.-Kings Highway Div., 39 AD3d 841; Prete v Rafla-Demetrious, 224 AD2d 674, 675). Here, the evidence was legally sufficient to support the jury's findings that the defendants and the third-party defendant Paul Owusu-Baah each deviated from accepted practice in various respects, and that such deviations proximately caused the infant plaintiff's injuries ( see Szczerbiak v Pilot, 90 NY2d 553, 556; Cohen v Hallmark Cards, 45 NY2d 493, 499; Fellin v Sahgal, 35 AD3d 800, 801). Moreover, the jury's findings in that regard were based on a fair interpretation of the evidence, and hence, were not against the weight of the evidence ( see Lolik v Big V Supermarkets, 86 NY2d 744, 746; Nicastro v Park, 113 AD2d 129, 132). Where, as here, the parties present expert testimony in support of their respective positions, it is the province of the jury to determine the experts' credibility ( see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831, 832; Velez v Policastro, 1 AD3d 429, 431).

The damages awards, as reduced and stipulated to by the plaintiff, do not deviate materially from what would be considered reasonable compensation ( see CPLR 5501 [c]).

The defendants' and the third-party defendants' remaining contentions are without merit.

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MANUKA v. CRENSHAW
(Sep 11, 2007)