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ASHLEY ANDREE, ETC., RESPONDENT, v. WINTHROP UNIVERSITY HOSPITAL, DEFENDANT, EDWARD WRIGHT, ETC., APPELLANT.

DECISION ORDER

ORDERED that the judgment is affirmed, with costs.

There was sufficient expert medical testimony from which the jury could rationally conclude that the plaintiff's injuries were proximately caused by the negligence of the appellant, Dr. Edward Wright (see, Depradine v. New York City Health and Hosps. Corp., 255 A.D.2d 288; DeVito v. Opatich, 215 A.D.2d 714). Moreover, the verdict in favor of the plaintiff was not against the weight of the credible evidence (see, Cohen v. Hallmark Cards, 45 N.Y.2d 493; Nicastro v. Park, 113 A.D.2d 129).

The trial court properly denied the appellant a new trial based upon the surprise revelation of his expert witness. The appellant's expert witness testified as she did due to his own error, which could have been anticipated in the exercise of due diligence (see, Hannon v. Dunkirk Motor Inn, 167 A.D.2d 834).

The damages awarded, as reduced by the Supreme Court and stipulated to by the plaintiff, do not deviate materially from what would be reasonable compensation (see, CPLR 5501[c]; Bermeo v. Atakent, 241 A.D.2d 235).

The appellant's remaining contentions are without merit.

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ANDREE v. WINTHROP UNIVERSITY HOSP
(Nov 13, 2000)