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

1355
CA 13-01094
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


COLLETTE ALGER AND JEFFREY ALGER,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

UNIVERSITY OF ROCHESTER MEDICAL CENTER,
STRONG MEMORIAL HOSPITAL, NANCY WANG, PH.D.,
STEPHANIE LANIEWSKI, C.G.C.,
DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


DAVID A. JOHNS, PULTNEYVILLE, AND CARL L. FEINSTOCK, ROCHESTER, FOR
PLAINTIFFS-APPELLANTS.

MARTIN CLEARWATER & BELL LLP, NEW YORK CITY (STEWART G. MILCH OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Monroe County
(Evelyn Frazee, J.), entered January 29, 2013. The judgment awarded
costs and disbursements to defendants University of Rochester Medical
Center, Strong Memorial Hospital, Nancy Wang, Ph.D., and Stephanie
Laniewski, C.G.C.

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

     Memorandum: Plaintiffs commenced this action seeking damages for
physical and emotional injuries allegedly sustained as a result of the
decision of Collette Alger (plaintiff) to terminate her pregnancy.
Plaintiffs alleged that such decision was the result of defendants’
negligence in performing prenatal diagnostic tests and advising them
regarding the results of such tests. After a trial, the jury rendered
a verdict in favor of defendants, finding that Stephanie Laniewski,
C.G.C. was not negligent and that University of Rochester Medical
Center, Strong Memorial Hospital (Hospital) and Nancy Wang, Ph.D. were
negligent but that their negligence was not a proximate cause of
plaintiffs’ injuries. Supreme Court denied plaintiffs’ posttrial
motion seeking, inter alia, to set aside the verdict as against the
weight of the evidence. We affirm.

     “A verdict rendered in favor of a defendant may be successfully
challenged as against the weight of the evidence only when the
evidence so preponderated in favor of the plaintiff[s] that it could
not have been reached on any fair interpretation of the evidence”
                                 -2-                         1355
                                                        CA 13-01094

(Krieger v McDonald’s Rest. of N.Y., Inc., 79 AD3d 1827, 1828, lv
dismissed 17 NY3d 734 [internal quotation marks omitted]; see Lolik v
Big V Supermarkets, 86 NY2d 744, 746). Further, “[w]here a verdict
can be reconciled with a reasonable view of the evidence, the
successful party is entitled to the presumption that the jury adopted
that view” (Schreiber v University of Rochester Med. Ctr., 88 AD3d
1262, 1263 [internal quotation marks omitted]). We conclude that a
reasonable view of the evidence supports the jury’s verdict that
Laniewski, a certified genetic counselor, was not negligent. There
was conflicting testimony concerning the communications between
Laniewski and plaintiffs, and “ ‘great deference is accorded to the
jury given its opportunity to see and hear the witnesses’ ” (Seong Yim
Kim v New York City Tr. Auth., 87 AD3d 531, 532).

     With respect to the other defendants, we conclude that the
verdict finding that they were negligent but that their negligence was
not a proximate cause of plaintiffs’ injuries is not inherently
inconsistent (see Finnegan v Peter, Sr. & Mary L. Liberatore Family
Ltd. Partnership, 90 AD3d 1676, 1677). Nor is that verdict against
the weight of the evidence unless the issues are so inextricably
interwoven that it would be logically impossible to find negligence
without also finding proximate cause (see Schreiber, 88 AD3d at 1263).
We conclude that there is a fair interpretation of the evidence
pursuant to which the jury could have found that defendants Hospital
and Wang were negligent in reporting erroneous test results to
plaintiffs, but that their negligence did not proximately cause
plaintiffs’ injuries. The evidence presented “factual question[s] . .
. whether, under the circumstances, it could reasonably be expected
that plaintiff . . . would elect to undergo an abortion” (Lynch v Bay
Ridge Obstetrical & Gynecological Assoc., 72 NY2d 632, 636), and
whether that decision was sufficiently independent of defendants’
conduct to constitute an intervening cause. Those questions presented
issues for the jury to resolve (see id.) and we decline to disturb its
resolution of those issues in defendants’ favor (see Wilson v Mary
Imogene Bassett Hosp., 307 AD2d 748, 748-749). We reject plaintiffs’
contention that the court abused its discretion in permitting several
witnesses to provide expert testimony on the issue of proximate cause
(see Kettles v City of Rochester, 21 AD3d 1424, 1426). Finally,
plaintiffs’ further contention that the structure of the verdict sheet
caused the jury to confuse proximate cause and comparative fault is
unpreserved for our review and in any event is lacking in merit (see
McFadden v Oneida, Ltd., 93 AD3d 1309, 1310-1311).




Entered:   February 7, 2014                    Frances E. Cafarell
                                               Clerk of the Court
