        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

88
CA 16-00414
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


RICHARD WILLIAMSON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ANNE J. HODSON, AS EXECUTRIX OF THE ESTATE OF
ROBERT P. HODSON, D.D.S., DEFENDANT-RESPONDENT.


TRONOLONE & SURGALLA, P.C., BUFFALO (RICHARD P. VALENTINE OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

ANSPACH MEEKS ELLENBERGER LLP, BUFFALO (DAVID M. STILLWELL OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (John M.
Curran, J.), entered December 14, 2015. The judgment was entered upon
a jury verdict in defendant’s favor.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action to recover for
damages for injuries that he allegedly sustained as a result of
decedent’s dental malpractice. On appeal from a judgment entered upon
a jury verdict in defendant’s favor, plaintiff contends that Supreme
Court erred in denying his motion for judgment as a matter of law
pursuant to CPLR 4401. We reject that contention. Given the
conflicting testimony of the parties’ experts, we conclude that it
cannot be said that there is “ ‘no valid line of reasoning and
permissible inferences which could possibly lead rational [persons] to
the conclusion [advocated by the nonmovant] on the basis of the
evidence presented at trial’ ” (Szczerbiak v Pilat, 90 NY2d 553, 556,
quoting Cohen v Hallmark Cards, 45 NY2d 493, 499).

     Plaintiff further contends that the court erred in failing to
grant his posttrial motion pursuant to CPLR 4404 (a) to set aside the
verdict as against the weight of the evidence and for a new trial. We
conclude that plaintiff’s contention is not properly before us
inasmuch as he abandoned that contention at oral argument of his
motion (see Webb v Salvation Army, 83 AD3d 1453, 1453; see generally
Ciesinski v Town of Aurora, 202 AD2d 984, 985). Here, the record
establishes that plaintiff’s counsel responded in the affirmative when
the court at oral argument asked whether plaintiff was requesting that
the court direct entry of judgment in his favor on the issue of
negligence and was “not asking for a new trial on the question of
                                 -2-                            88
                                                         CA 16-00414

negligence,” i.e., the appropriate relief when a jury verdict is set
aside as against the weight of the evidence (see Rogers v DiChristina,
195 AD2d 1061, 1062, lv denied 82 NY2d 852). In any event,
plaintiff’s contention lacks merit inasmuch as “ ‘the trial was a
prototypical battle of the experts, and the jury’s acceptance of
[defendant’s] case was a rational and fair interpretation of the
evidence’ ” (Schultz v Excelsior Orthopaedics, LLP [appeal No. 2], 129
AD3d 1606, 1607).




Entered:   February 10, 2017                   Frances E. Cafarell
                                               Clerk of the Court
