

Sargente v Mobarakai (2015 NY Slip Op 04835)





Sargente v Mobarakai


2015 NY Slip Op 04835


Decided on June 10, 2015


Appellate Division, Second Department


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.



Decided on June 10, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

PETER B. SKELOS, J.P.
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX
HECTOR D. LASALLE, JJ.


2012-04732
2012-06504
2012-04847
 (Index No. 100645/08)

[*1]Karen Sargente, etc., appellant, 
vNeville Mobarakai, etc., et al., respondents, et al., defendant.


Law Office of Peter D. Assail, LLC (Arnold E. DiJoseph III, New York, N.Y., of counsel), for appellant.
Amabile & Erman, P.C., Staten Island, N.Y. (Shari D. Steinfeld of counsel), for respondent Neville Mobarakai.
Vaslas, Lepowsky, Hauss & Danke, LLP, Staten Island, N.Y. (Paul J. Danke, Jr., of counsel), for respondents Tamara Mandic and St. Elizabeth Ann's Health Care & Rehabilitation Center.
DeCorato Cohen Sheehan & Federico LLP, New York, N.Y. (Joshua R. Cohen, Amanda L. Tate, and Amanda P. Just of counsel), for respondent Staten Island University Hospital.

DECISION & ORDER
In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from (1) a judgment of the Supreme Court, Richmond County (Maltese, J.), entered March 26, 2012, which, upon so much of a jury verdict as was in favor of the defendant Neville Mobarakai and against her on the issue of liability, is in favor of that defendant and against her dismissing the complaint insofar as asserted against that defendant, (2) a judgment of the same court, also entered March 26, 2012, which, upon so much of the same jury verdict as was in favor of the defendants Tamara Mandic and St. Elizabeth Ann's Health Care & Rehabilitation Center and against her on the issue of liability, is in favor of those defendants and against her dismissing the complaint insofar as asserted against those defendants, and (3) a judgment of the same court dated May 3, 2012, which, upon so much of the same jury verdict as was in favor of the defendant Staten Island University Hospital and against her on the issue of liability, is in favor of that defendant and against her dismissing the complaint insofar as asserted against that defendant.
ORDERED that the judgments are affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The plaintiff commenced the instant action to recover damages for medical malpractice and wrongful death, alleging, among other things, the failure to properly diagnose the [*2]plaintiff's decedent with a condition known as Stevens-Johnson Syndrome. In the ensuing trial, the plaintiff sought to introduce five color photographs of the plaintiff's decedent taken approximately 13 hours following her death, and several hours after the body had been embalmed, for the stated purpose of showing a "more accurate depiction of the condition she was in at the end of her life," particularly "with respect to her skin breakdown and her Stevens-Johnson or Stevens-Johnson-like condition."
We agree with the plaintiff that the Supreme Court erred in precluding her from making an evidentiary showing for the purpose of authenticating the photographs she sought to introduce into evidence (see People v Patterson, 93 NY2d 80, 84; People v Byrnes, 33 NY2d 343, 347; Geary v Church of St. Thomas Aquinas, 98 AD3d 646, 647). However, reversal is not warranted, as there is no indication that the preclusion of the photographs prejudiced a substantial right of the plaintiff (see CPLR 2002; Geary v Church of St. Thomas Aquinas, 98 AD3d at 647; White v Kim, 29 AD3d 685; Milone v Milone, 266 AD2d 363, 363-364; Walker v State of New York, 111 AD2d 164, 165).
SKELOS, J.P., ROMAN, HINDS-RADIX and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


