Tuesday, October 11, 2016

A posttrial motion to set aside the verdict.

Practice point:  The Order granting plaintiff's posttrial motion to set aside the verdict was reversed, on the law and the facts, the jury verdict was reinstated, and the complaint was dismissed.

Plaintiff had presented to defendant-dentists, and then, two years later, a tumor was discovered in the lower left side of plaintiff's mouth. Plaintiff alleges that the tumor should have been detected on the bitewing x-ray taken at defendants' office two years earlier.

At trial, the jury was presented with conflicting evidence as to whether there were sufficient grounds to investigate and take further x-rays. It was further asked to determine the credibility of the defense expert, who plaintiff's trial counsel asserted lied about the issues in the case. The jury's verdict implicitly rejected that contention, and resolved the conflicting testimony in defendants' favor.  In the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict, with particular deference given to jury verdicts in favor of defendants in tort cases.

Student note:  The verdict was based on a fair interpretation of the evidence and should not have been disturbed.

Case:  Cordero v. Young, NY Slip Op 06543 (1st Dep't October 6, 2016)

Here is the decision.

Tomorrow's issue:  Real Property Law and enforcing restrictive covenants.