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

476
CA 12-01638
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


CAROL A. CARNEVALE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ELIZABETH WENDE BREAST CARE, LLC, THE
ELIZABETH WENDE BREAST CLINIC, PATRICIA
SOMERVILLE, M.D. AND POSY SEIFERT, D.O.,
DEFENDANTS-RESPONDENTS.


FOLEY AND FOLEY, PALMYRA (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

UNDERBERG & KESSLER LLP, CANANDAIGUA (MARGARET E. SOMERSET OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Wayne County (John
B. Nesbitt, A.J.), entered December 22, 2011. The judgment awarded
costs and disbursements to defendants following a jury verdict in
favor of defendants.

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

     Memorandum: Plaintiff commenced this action seeking damages for
defendants’ alleged medical malpractice in failing to make a timely
diagnosis of her breast cancer. Following a trial the jury found that
defendants were not negligent in their care and treatment of
plaintiff, and Supreme Court denied plaintiff’s posttrial motion to
set aside the verdict. We note at the outset that, although plaintiff
appealed from the order denying her posttrial motion to set aside the
verdict rather than from the judgment in which that order was
subsumed, “we exercise our discretion to treat plaintiff[’s] notice of
appeal as valid and deem the appeal as taken from the judgment”
(Campopiano v Volcko [appeal No. 2], 61 AD3d 1343, 1344). Plaintiff
contends that a juror affidavit establishes that certain jurors were
biased against her and thus that she was denied a fair trial. We
reject that contention. Here, “[i]n the absence of exceptional
circumstances” (Lopez v Kenmore-Tonawanda Sch. Dist., 275 AD3d 894,
897), “ ‘the use of [juror] affidavits for the purpose of exploring
the deliberative process of the jury and impeaching its verdict is
patently improper’ ” (Best v Swan Group L.P., 81 AD3d 1344, 1344; see
Pawlaczyk v Jones, 26 AD3d 822, 823, lv denied 7 NY3d 701).

     Contrary to plaintiff’s further contention, the court did not
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                                                         CA 12-01638

commit reversible error by allowing plaintiff’s treating physician to
testify as to her opinion concerning the merits of plaintiff’s action.
We conclude that the error did not “affect[] the result” of this
action and therefore is harmless (Palmer v Wright & Kremers, 62 AD2d
1170, 1170; see Cook v Oswego County, 90 AD3d 1674, 1675).




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
